Universal Civil Jurisdiction : Which Way Forward? [1 ed.] 9789004408579, 9789004408562

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Universal Civil Jurisdiction

Universal Civil Jurisdiction Which Way Forward? Edited by

Serena Forlati and Pietro Franzina with the assistance of Mariangela La Manna

LEIDEN | BOSTON

Library of Congress Cataloging-​in-​Publication Data Names: Forlati, Serena, author. | Franzina, Pietro, author. Title: Universal Civil Jurisdiction – Which Way Forward? / edited by Serena Forlati and Pietro Franzina with the assistance of Mariangela La Manna. Description: Leiden, The Netherlands ; Boston : Koninklijke Brill NV, 2021. | Includes bibliographical references and index. | Summary: “Enabling the victims of international crimes to obtain reparation is crucial to fighting impunity. In Universal Civil Jurisdiction – Which Way Forward? Experts of public and private international law discuss one of the key challenges that victims face, namely access to justice. Civil courts in the country where the crime was committed may be biased, or otherwise unwilling or unable to hear the case. Are the courts of other countries permitted, or required, to rule on the victim’s claim? Trends at the international and the domestic level after the Naït-Liman judgment of the European Court of Human Rights offer a nuanced answer, suggesting that civil jurisdiction is not only concerned with sovereignty, but is also a tool for the governance of global problems.”– Provided by publisher. Identifiers: LCCN 2020024825 | ISBN 9789004408562 (hardback) | ISBN 9789004408579 (ebook) Subjects: LCSH: Jurisdiction (International law) | Conflict of laws–Jurisdiction. | Civil procedure. | Process (Law) | European Court of Human Rights. | International law and human rights. | International crimes. Classification: LCC KZ4017 .F67 2021 | DDC 341/.04–dc23 LC record available at https://lccn.loc.gov/2020024825

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/​brill-​typeface. isbn 978-​9 0-​0 4-​4 0856-​2 (hardback) isbn 978-​9 0-​0 4-​4 0857-​9 (e-​book) Copyright 2021 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Requests for re-use and/or translations must be addressed to Koninklijke Brill NV via brill.com or copyright.com. This book is printed on acid-​free paper and produced in a sustainable manner.

Contents Foreword vii Giorgio Gaja List of Abbreviations x Notes on Contributors xii Introduction 1 Serena Forlati and Pietro Franzina 1 The Case of Näit-​Liman before the European Court of Human Rights: A Forum Non Conveniens for Asserting the Right of Access to a Court in Relation to Civil Claims for Torture Committed Abroad? 3 Andrea Saccucci 2 The Role of the European Court of Human Rights in the Development of Rules on Universal Civil Jurisdiction: Naït-​Liman v Switzerland in the Transition between the Chamber and the Grand Chamber 38 Serena Forlati 3 Interpretation of the European Convention on Human Rights: Lessons from the Naït-​Liman Case 56 Malgosia Fitzmaurice 4 Public International Law Constraints on the Exercise of Adjudicatory Jurisdiction in Civil Matters 74 Lucas Roorda and Cedric Ryngaert 5 Universal Civil Jurisdiction and Reparation for International Crimes 99 Beatrice I. Bonafè 6 Limitations to the Exercise of Civil Jurisdiction in Areas Other Than Reparation for International Crimes 120 Fabrizio Marongiu Buonaiuti 7 Residual Jurisdiction under the Brussels I bis Regulation: An Unexpected Avenue to Address Extraterritorial Corporate Human Rights Violations 140 Mariangela La Manna

vi Contents 8 The Law Applicable to the Civil Consequences of Human Rights Violations Committed Abroad 159 Patrick Kinsch 9 The Changing Face of Adjudicatory Jurisdiction 170 Pietro Franzina Bibliography 189 Index 204

Foreword Giorgio Gaja While universal jurisdiction in criminal matters has been the subject of a substantial body of literature, much less attention has been given to universal civil jurisdiction, namely jurisdiction exercised by a State over a civil case when there are no significant connections between that case and the forum State. The present collection of essays provides a welcome contribution to the study of this topic. As could be expected, the judgment of the European Court of Human Rights (hereinafter, the Court) in Naït-​Liman v Switzerland, rendered by the Grand Chamber in 2018, elicits several comments (especially those of Andrea Saccucci, Serena Forlati and Malgosia Fitzmaurice) and provides the background of most chapters. However, the volume also addresses various aspects of universal civil jurisdiction that were not considered in the judgment. One of these issues is the existence under international law of restraints to the exercise of universal civil jurisdiction. The Court assumes that Article 6 of the European Convention on Human Rights implies an obligation for the forum State generally to provide access to its courts unless there are ‘permitted’ restrictions (paragraphs 113–​116). One of the exceptions that a State may introduce is identified by the judgment in the absence of any significant connection between the case and the forum State. The Court does not envisage the possibility that, when the case has no connection with the forum State, the latter could have an obligation under international law not to exercise its jurisdiction. As Lucas Roorda and Cedric Ryngaert point out in their chapter, it is unlikely in practice that the exercise by the forum State of an extraterritorial jurisdiction would be restrained by international law for the reason that it would affect the sovereign prerogatives of another State. There is for instance no negative impingement on the sovereign prerogatives of the State of investment when access to the courts of the forum State allows a victim to claim compensation for a wrongful act committed by a subsidiary of a multinational corporation in the host State (an issue specifically examined also by Mariangela La Manna). A more relevant reason for requiring the forum State not to exercise universal civil jurisdiction may be the need to protect the respondent’s human right to a fair trial. This aspect is discussed by Fabrizio Marongiu Buonaiuti. The existence of an obligation not to exercise civil jurisdiction in the absence of any connection between the case and the forum State would protect individuals

viii Foreword from the nightmare of being sued in civil proceedings taking place in countries with which the case has no significant connection. With regard to an obligation not to exercise universal civil jurisdiction under such circumstances, one could argue for the existence of some exceptions to the obligation in the general interest to provide some remedy to the victims of certain injuries, in particular in respect of claims requesting reparation for harm caused by an international crime. The Court implicitly acknowledged the lawfulness of the exercise by a State of jurisdiction over those claims in the absence of any connection, by observing that ‘the efforts by States to make access to a court as effective as possible for those seeking compensation for acts of torture are commendable’ (paragraph 218). Although framed as an incidental remark in exhortative language, this statement is appraised by Serena Forlati as a positive development. However, Andrea Saccucci notes that the Court’s conclusion that Switzerland was under no obligation to exercise civil jurisdiction with regard to the applicant’s claim for reparation ‘will in fact curb the development of the rules on universal civil jurisdiction’. The key issue discussed by the Court in its judgment was whether Switzerland breached an obligation under Article 6 of the European Convention on Human Rights by not extending the jurisdiction of its courts to entertain the claim made by the applicant for the reparation of harm caused to him by torture committed in a third country. An extensive analysis of State practice led the Court to deny the existence of an obligation to exercise universal civil jurisdiction under customary international law. The main question to be addressed was whether an obligation to exercise jurisdiction was imposed by Article 14, paragraph 1, of the Convention against Torture, according to which ‘[e]‌ach State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to a fair and adequate compensation, including the means for as full rehabilitation as possible’. Although the Committee against Torture found that this provision ‘requires States parties to ensure that all victims of torture and ill-​treatment are able to access remedy and obtain redress’ (General Comment no 3), the Court considered that an obligation for the forum State to exercise civil jurisdiction only exists if there is a reasonable connection between the case and that State. This view is in line with the interpretation given by the Court of Appeal of Ontario in Bouzari, the Court of Appeal of England and Wales in Jones, and the Supreme Court of Canada in Kazemi. However, as argued by Pietro Franzina and Andrea Saccucci, a further element to be taken into account should be whether there exists an alternative remedy in a third country for the victim of the harm. In the absence of any alternative, the restrictive reading of Article 14 of the Convention

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against Torture leads to a failure to fulfil the general interest, underlying the Convention, that victims of torture should be given a remedy. Universal civil jurisdiction, whether freely exercised by the forum State or considered to be required by an international obligation, is not a panacea. In Naït-​Liman the Court rightly observed that, when the case has no connection with the forum State, there will be difficulties in the running of the proceedings, in particular with regard to the collection of evidence (paragraph 118). Some other issues that have not been dealt with in the Court’s judgment are opportunely examined in specific chapters. One question, discussed by Beatrice Bonafé, is how individual claims preferred on the basis of universal civil jurisdiction combine with requests for collective reparation of harm caused by international crimes made by groups of victims or by their State of nationality. A further issue, which is examined by Patrick Kinsch, concerns the selection of the law applicable to the merits of a claim brought before the courts of a State with which the case has no significant connection. With regard to harm caused by international crimes, the application of the law of the State where the acts were committed seems generally inappropriate, even if some aspects of that law may be corrected by recourse to public policy. As this brief presentation indicates, the authors of the various chapters follow different approaches and hold individual views. The volume does not purport to provide a series of coherent solutions but rather offers a plurality of balanced reflections. This seems to be the most appropriate contribution to the study of what is a controversial subject, as shown by the divisive vote taken by the Institute of International Law when it adopted in 2015 its Tallinn Resolution.

Abbreviations achr ajil ariel asil Proceedings British Ybk Intl L Business Human Rights J Canadian J L Society Case Western Reserve J Intl L Columbia Transnl L cml Rev Cuad der transl dudi Duke J C Intl L ecj echr ECtHR ejil Eur Human Rights L Rev Eur J Intl Rel Eur J L Reform George Washington Intl L Rev Georgetown J Intl L German Ybk Intl L Harvard Intl L J Human Rights L Rev IACtHR Indian J Intl L icc icj iclq ilc Intl L FORUM du droit int Italian Ybk Intl L J Intl Dispute Settlement J L Politics J Private Intl L

American Convention on Human Rights American Journal of International Law Austrian Review of International and European Law Proceedings of the American Society of International Law British Yearbook of International Law Business and Human Rights Journal Canadian Journal of Law and Society Case Western Reserve Journal of International Law Columbia Transnational Law Common Market Law Review Cuadernos de derecho transnacional Diritti umani e diritto internazionale Duke Journal of Comparative and International Law Court of Justice of the European Union European Convention on Human Rights European Court of Human Rights European Journal of International Law European Human Rights Law Review European Journal of International Relations European Journal of Law Reform The George Washington International Law Review Georgetown Journal of International Law German Yearbook of International Law Harvard International Law Journal Human Rights Law Review Inter-​American Court on Human Rights Indian Journal of International Law International Criminal Court International Court of Justice International & Comparative Law Quarterly International Law Commission International Law forum du droit international Italian Yearbook of International Law Journal of International Dispute Settlement Journal of Law and Politics Journal of Private International Law

Abbreviations L Contemporary P lipct ljil Max Planck Ybk UN L mpil Research Paper Series Michigan L Rev Netherlands Intl L Rev Netherlands Ybk Intl L Nordic J Intl L Northwestern J Intl Human Rights oidu RabelsZ rdi rdipp Rev crit dr int priv Rev Fr Admin Pub Riv trim dir proc civ rsdie South African Ybk Intl L Trade L Devpt Transnl L Theory Utrecht L Rev Virginia J Intl L Washburn L J Yale Human Rights Devpt L J Yale L J Ybk Priv Intl L ZaörRV ZfRV

xi Law and Contemporary Problems The Law and Practice of International Courts and Tribunals Leiden Journal of International Law Max Planck Yearbook of United Nations Law Max Planck Institute Luxembourg Research ­Paper Series Michigan Law Review Netherlands International Law Review Netherlands Yearbook of International Law Nordic Journal of International Law Nothwestern Journal of International Human Rights Ordine internazionale e diritti umani Rabels Zeitschrift für ausländisches und internationals Privatrecht Rivista di diritto internazionale Rivista di diritto internazionale privato e ­processuale Revue critique de droit international privé Revue française d’administration publique Rivista trimestrale di diritto e procedura civile Revue suisse de droit international et européen South African Yearbook of International Law Trade, Law and Development Transnational Legal Theory Utrecht Law Review Virginia Journal of International Law Washburn Law Journal Yale Human Rights and Development Law Journal Yale Law Journal Yearbook of Private International Law Zeitschrift für ausländisches öffentliches Recht und Völkerrecht Zeitschrift für Europarecht, Internationales Privatrecht und Rechtsvergleichung

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Notes on Contributors Beatrice I. Bonafè Professor of International Law, University of Rome ‘La Sapienza’ Malgosia Fitzmaurice Professor of Public International Law, Queen Mary University, London Serena Forlati Professor of International Law, University of Ferrara Pietro Franzina Professor of International Law, Catholic University of the Sacred Heart, Milan Giorgio Gaja Emeritus Professor of International Law, University of Florence; Judge at the International Court of Justice Patrick Kinsch Honorary Professor of Private International Law, University of Luxembourg Mariangela La Manna Post-​Doc Researcher, Catholic University of the Sacred Heart, Milan Fabrizio Marongiu Buonaiuti Professor of International Law, University of Macerata Lucas Roorda Post-​Doc Researcher, University of Utrecht Cedric Ryngaert Professor of Public International Law, University of Utrecht Andrea Saccucci Professor of International Law, University of Campania ‘Luigi Vanvitelli’

Introduction Serena Forlati and Pietro Franzina The fight against impunity for international crimes reflects a prominent interest of the international society. This interest is mostly pursued by striving to achieve the effective exercise of criminal jurisdiction over perpetrators  –​ a ‘duty of every State’, according to the Statute of the International Criminal Court. Enabling the victims to effectively claim reparation for the prejudice they suffered is also crucial in this respect. In principle, victims may claim reparation in the framework of criminal proceedings, including at the international level, notably before the International Criminal Court (icc) under Article 75 of its Statute, or through civil proceedings before State courts. However, remedies offered at domestic level by the State where the international crimes were perpetrated are not always effective. Indeed, where State organs were involved in the commission of the crimes, effective access to justice can in fact be hindered in various ways. That said, bringing a claim for reparation before the courts of a State other than the State where the facts occurred may face obstacles of a different kind. One such obstacle is jurisdiction. Will the courts seised of the claim consider that they have authority to rule on the matter? Will they limit themselves to assessing, for that purpose, the connections between the case and the forum, or will they rather consider that, no matter how weak those connections, justice must be done, and victims should be able to have their case heard? State courts are instructed to answer those questions in accordance with the rules set forth in their respective domestic legislation, or otherwise in force in the forum. At the same time, they must ensure compliance with any relevant international obligations. The contributions collected in this book consider the extent of such obligations and a range of other issues in connection with civil claims relating to international wrongs. The point of departure of the discussion is the case of Naït-​Liman v Switzerland, decided by a Chamber of the European Court of Human Rights (ECtHR) on 21 June 2016 and by the Grand Chamber on 15 March 2018. The case arose from civil proceedings brought in Switzerland by one Mr Naït-​Liman, a Tunisian national then living in Switzerland, against the former Minister of Interior of Tunisia to obtain reparation for tortures he had suffered in the latter country. The Swiss courts declined jurisdiction. The ECtHR held that, by failing to make its courts available, Switzerland had not infringed Mr Naït-​Liman’s right of access to a court under Article 6 of the European Convention on

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Forlati and Franzina

Human Rights. The Court cautiously avoided any form of ‘judicial law-​making’, in keeping with a ‘conservative’ reading of the role of international courts and tribunals in contemporary international law, which is also expressed in the case law of the International Court of Justice. This notwithstanding, the Grand Chamber stated in rather clear terms that the exercise of universal civil jurisdiction is lawful –​and, indeed, desirable –​from the perspective of the European ­Convention. The Grand Chamber thus confirmed that the exercise of civil –​as of criminal –​jurisdiction may be instrumental to the implementation of international human rights obligations and to the protection of the rights of victims, notably of victims of international crimes. If, and how, States will show willingness to conceive the exercise of jurisdiction not only as a problem ofs sovereignty, but also as a tool of governance of global problems, remains unclear. Arguably, however, a shift in this direction is needed if the interests of victims of international crimes are to be taken seriously. The issues discussed in this volume, which were first addressed in a seminar at the Department of Law of the University of Ferrara on 5 May 2017, may hopefully foster further reflection in this regard. Ferrara –​ Milan 5 February 2020

chapter 1

The Case of Naït-​Liman before the European Court of Human Rights A Forum Non Conveniens for Asserting the Right of Access to a Court in Relation to Civil Claims for Torture Committed Abroad? Andrea Saccucci 1

Introduction

In its Grand Chamber’s judgment in the case Naït-​Liman v Switzerland,1 the European Court of Human Rights (ECtHR) has finally ruled on the issue of whether the right of access to a court protected by Article 6(1) of the European Convention on Human Rights (echr) entails an obligation for the Contracting States to secure some form of universal civil jurisdiction (ucj) or to provide a particular title of residual jurisdiction based on necessity,

1 Naït-​Liman v Switzerland App no 51357/​07 (ECtHR, GC, 15 March 2018). Among the first commentators of the Grand Chamber’s judgment see C De Marziis, ‘Diritto di accesso a un giudice e giurisdizione civile universale dinanzi alla Corte europea dei diritti umani’ (2018) 12 DUDI 693; R Pavoni, ‘Giurisdizione civile universale per atti di tortura e diritto di accesso al giudice: la sentenza della Grande Camera della Corte europea dei diritti umani nel caso Naït-​Liman’ (2018) 101 RDI 892; DP Mora, ‘Universal Civil Jurisdiction and  Forum Necessitatis:  The Confusion of  Public and  Private International Law in  Naït-​Liman v. Switzerland’ (2018) 65 Netherlands Intl L Rev 155; S Nkenkeu-​kek, ‘L’arrêt Naït-​Liman c. Suisse ou l’occasion manquée par la Cour européenne des droits de l’homme de renforcer l’effectivité du droit des victimes d’obtenir réparation de violations graves des droits de l’homme’ (2018) 29 Rev trim dr homme 985; C Heri, ‘The Grand Chamber, Universal Civil Jurisdiction for Torture and Naït-​Liman v Switzerland’, Strasbourg Observers, 28 March 2018, available at (last accessed 31 December 2019); D Rietiker, ‘The Case of Naït-​Liman v Switzerland Before the European Court of Human Rights: Where Are the Limits of the Global Fight Against Torture?’, Harvard Intl LJ, 15 March 2019, available at (last accessed 31 December 2019); C Loudon, ‘Right of Access to a Court in Civil Claims for Torture Committed Abroad: The European Court Grand Chamber Decision in Naït-​Liman’, EJILTalk!, 3 April 2018, available at (last accessed 31 December 2019).

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4 Saccucci that is, a forum necessitatis (fnj), in relation to reparation claims brought by victims of acts of torture perpetrated by third States or persons under their jurisdiction. As in the proceedings before the Chamber,2 the majority of the judges of the Grand Chamber (15 against 2) found that Article 6 echr does not impose any such obligation and that, having regard to the specific circumstances of the case, the Swiss courts’ narrow interpretation of the domestic provisions on fnj, namely with reference to the requirement of the existence of a ‘sufficient link’ with the forum State, pursued legitimate aims and was not disproportionate to them. Even if the Grand Chamber has remedied some of the shortcomings of the Chamber’s judgment also in light of the criticisms expressed by the dissenting judges and by legal scholars,3 the reasoning endorsed by the majority remains questionable in several respects. The assessment of proportionality under Article 6 echr through the restrictive paradigm of the ‘lack of arbitrariness or manifest unreasonableness’ in the application of fnj by the domestic courts is of particular concern. Whereas there are several reasons that could have possibly warranted a different conclusion on the merits of the applicant’s complaint, an overturn by the Grand Chamber  –​in addition to being in itself insufficient to ensure effective access to a court by victims of torture (as it would not touch upon the controversial issue of immunity of foreign States) –​was however highly unlikely to occur. Bearing in mind that the echr is intended to be a minimum common standard of protection, it is suggested that the Court is, generally speaking, an unfitted forum to deal in a progressive manner with issues of ucj or fnj in the absence of an already well-​established consensus emerging from the domestic law and practice of the Contracting States in this field. In its judgment, the Grand Chamber expressed several caveat, namely that its conclusion under the Convention should not be read so as to call into question, as to its principle, ‘the right of victims of acts of torture to obtain appropriate and effective compensation’4 or ‘the fact that the States are encouraged

2 See Naït-​Liman v Switzerland App no 51357/​07 (ECtHR, 21 June 2016). Three Chamber judges, namely Judges Karakaş, Vučinić and Kūris, dissented from the conclusion of the majority and appended a separate opinion. Judge Lemmens appended a concurring opinion. 3 For comments on the Chamber’s judgment see BI Bonafè, ‘La Corte europea dei diritti dell’uomo e la giurisdizione universale in materia civile’ (2016) 99 RDI 1100; C Ryngaert, ‘From Universal Civil Jurisdiction to Forum of Necessity: Reflections on the judgment of the European Court of Human Rights in Naït-​Liman’ (2017) 100 RDI 782. 4 Naït-​Liman (GC) (n 1) para 97, para 218.

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to give effect to this right by endowing their courts with jurisdiction to examine such claims for compensation, including where they are based on facts which occurred outside their geographical frontiers’, and that ‘a possibility of developments in the future’ is not ruled out.5 However, it is much likely that the ECtHR’s ruling of no-​violation of Article 6 echr will in fact curb the development of the rules on ucj and fnj by lending to the Contracting States a legal justification for not improving their legislation and practice in this respect and will thus ultimately hamper the process of reinforcing the actual realization of the right to redress for victims of torture. Specifically, the ECtHR’s finding that there is currently no rule of general international law or of treaty law obliging States to make civil remedies available in respect of acts of torture perpetrated abroad by officials of a foreign State, where no other connection with the forum is present, and that such a restriction pursues the legitimate aim to secure the proper administration of justice may have a ‘chilling effect’ on the evolution of international law in this field, similarly to what happened in relation to the rules on jurisdictional immunities after the Court’s judgment in the case of Al-​Adsani.6 Moreover, even if the Grand Chamber had found a violation of Article 6 echr in Naït-​Liman on account of the specific circumstances of the case, this conclusion may not have had the expected positive impact on the development of national and international rules on ucj and fnj for victims of torture. On the contrary, it may have weakened the development of the practice of the Contracting States by fostering a self-​restraint approach of domestic courts based on a restrictive reading of the ECtHR’s case-​law on Article 6 echr. 2

The Facts of the Case and the Object of the Dispute as Delimited by the Grand Chamber

The facts of the case are straightforward.7 In 1992, when he was residing in Italy with his family, the applicant, a Tunisian national, was abducted by the Italian police and handed over to officials of the Tunisian Consulate in Genova. The 5 ibid para 220. 6 Al-​Adsani v United Kingdom App no 35763/​97 (ECtHR, GC, 21 November 2001), especially paras 52–​67. This judgment has been extensively relied on in the subsequent international and national jurisprudence in order to conclude that no exception to the immunity of States is still established under general international law. 7 Naït-​Liman (GC) (n 1) paras 14–​36.

6 Saccucci following day, he was deported by Tunisian officials to Tunisia where he was arbitrarily detained in the premises of the Ministry of Interior from 24 April to 1 June 1992, and subjected to torture on the orders of the then Minister of Interior.8 He was then released and moved to Switzerland where he was granted refugee status in 2003. In 2004, the applicant lodged a civil lawsuit against the Tunisian State and the former Tunisian Minister of Interior before the Swiss courts based on the law of torts. In 2005, the Court of first instance of the Canton of Geneva declared the claim inadmissible on the grounds that it lacked territorial jurisdiction under international law ‘given that the defendants are not domiciled or habitually resident in Switzerland, and given also that no illegal act or detrimental outcome occurred in Switzerland’. On appeal, the Court of Justice of the Canton of Geneva held that the defendants enjoyed immunity from jurisdiction under international law insofar as the acts of torture had been perpetrated in the exercise of sovereign authority (iure imperii) and that therefore the question of whether there exists a forum of necessity in the applicant’s place of residence could remain undecided. In 2007, the Federal Supreme Court (fsc) finally dismissed the applicant’s lawsuit finding that Swiss courts had no jurisdiction to entertain the civil claim because of the lack of any qualified, substantial connection between the cause and the forum State. Notably, the fsc held that the applicant  –​a refugee who had come to Switzerland in 1993, had ever since lived there and eventually had acquired Swiss nationality in 2007 (shortly after the issuing of the fsc’s ruling but on the basis of favorable advise which was rendered the day before) –​could not rely on the so-​called forum of necessity jurisdiction as regulated by Article 3 of the Federal Statute on Private International Law of 18 December 1987 (ldip), given that the requirement of the ‘sufficient link with Switzerland’ was not met. According to the fsc, the facts complained of by the applicant did not have any relevant connection with Switzerland and the fnj could not be applied just because the complainant had subsequently chosen to come to Switzerland and had been later naturalized. In front of the ECtHR, the applicant claimed that the decision of the Swiss courts to decline jurisdiction to examine the merits of his action for damages 8 Notably, the applicant alleged that he was subjected to the so-​called ‘roast chicken’ position throughout the entire period of detention and deprived of his basic physiological needs, particularly sleep; he was also beaten on the soles of his feet with a baseball bat and struck all over his body with telephone cords.

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against Tunisia and the former Minister of Interior was in breach of his right of access to a court within the meaning of Article 6(1) echr. Before dealing with the complaint, the Grand Chamber deemed useful to make some clarifications regarding the scope of the dispute before it. Firstly, it reiterated that it was not necessary in this case to examine the question of possible immunities from jurisdiction, a question which also the Chamber had left open,9 given that the fsc declined at the outset its jurisdiction ratione loci and that, according to the international practice in this area, the question of immunity should be addressed only once there has been a determination in respect of the question of jurisdiction, ‘since it is only where a State has jurisdiction under international law to a particular matter that there can be any question of immunities in regard to the exercise of that jurisdiction’.10 Even if methodologically correct, this proposition is somehow redundant in the specific circumstances of the case, given that the ECtHR’s review could only concern the decision of the fsc to decline territorial jurisdiction and not a possible dismissal of the applicant’s claim on ground of immunity from jurisdiction. Such a clarification would have been meaningful only if the Grand Chamber had come to the conclusion that the decision of the fsc on fnj was arbitrary or manifestly unreasonable under Article 6 echr, because in that case jurisdictional immunities could still play a role before the domestic courts. Secondly, the Grand Chamber clarified that three factual issues were not taken into account in assessing the applicant’s complaint under Article 6 echr, and notably: a) the alleged lack of diligence of the Swiss prosecuting authorities in respect of the applicant’s criminal complaint against the former Minister of Interior when he was under medical treatment in the Geneva University Hospital; b) the submission by the applicant of a complaint to the Truth and Dignity Commission (tdc), an independent body established by the Tunisian Parliament in 2013 in order to deal with allegations by victims of torture during the regime; c) the possibility for the applicant to bring proceedings before Italian courts, whether against the Tunisian authorities, in respect of the torture sustained, or against the Italian authorities, in respect of his arrest and surrender to the Tunisian authorities. 9 10

Naït-​Liman (n 2) para 106. Naït-​Liman (GC) (n 1) para 99. In reaching this conclusion, the Court relied on the rulings of the International Court of Justice in the cases Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Judgment) [2002] icj Rep 3, para 46; Jurisdictional Immunities of the State (Germany v Italy; Greece intervening) (Judgment) [2012] icj Rep 99, para 82.

8 Saccucci However, the way in which the ECtHR addressed the above three issues is substantially different. In relation to the first one, it concluded that, on the factual circumstances of the case, the prosecuting authorities had not acted with negligence in dealing with the applicant’s criminal complaint and that the applicant had not challenged the decision to discontinue the proceedings, so that this aspect ‘will not be taken into consideration (…) in assessing compliance with Article 6’.11 In relation to the second issue, the ECtHR held that, since the tdc had been set up after the relevant judgment of the fsc, the possibility of submitting a complaint to it, possibly followed by judicial proceedings, ‘is not relevant for the examination of the present case’.12 Eventually, in relation to the third issue, the ECtHR noted that the applicant had not provided any definite information regarding possible proceedings before the Italian courts and that the fsc had not dealt with the question of whether, for the purpose of fnj, legal proceedings in another country were impossible or could not reasonably be required. Accordingly, it held that the outcome of any such proceedings, including the question of jurisdiction of the Italian courts, remained speculative and that ‘[i]‌n those circumstances, the Court cannot rule on this question’.13 As it will be further elaborated below, the latter point may turn to crucially affect ex post the reasoning of the judgment on the proportionality of the restriction of the applicant’s right of access to a court. In fact, the availability of an alternative forum before the Italian courts in relation to the facts complained of by the applicant could be material to the assessment of whether his right of access was impaired in its very essence within the framework of the proportionality test.14

11

12 13 14

Naït-​Liman (GC) (n 1) para 100. At para 185 the Court stated that ‘in the present case the applicant lodged a criminal complaint in 2001 and applied to join the proceedings as a civil party, but (…) the complaint was discontinued on the ground that AK, the presumed perpetrator of the acts of torture, had left Swiss territory’, and at para 186 that ‘[i]‌n the present case, however, the applicant lodged his civil action for damages in 2004, separately from any criminal proceedings’. The question was then left open about whether an established negligence of the prosecuting authorities in conducting the criminal proceedings on ground of universal jurisdiction resulting in the victim of torture being prevented from pursing his compensation claim by joining the criminal proceedings as a civil party may amount to a disproportionate restriction of the right of access to a court. Naït-​Liman (GC) (n 1) para 101. ibid para 102. See below Section 6.

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9

The Grounds of the Grand Chamber’s Ruling in Light of the Relevant International and National Law and Practice and of the Comparative Law Materials on ucj and fnj

After an extensive review of the relevant international law and practice15 and of the comparative law material,16 the Grand Chamber addressed first the question of whether Article 6 echr was applicable in the present case, by responding to the Government’s objection that Swiss law did not recognize a right to bring an action for compensation in respect of acts of torture that had no connection with Swiss jurisdiction and that such a substantive civil right could not be created by Article 6(1) echr. Although the Government had not repeated this argument before the Grand Chamber,17 the latter considered it nonetheless useful to supplement the reasoning of the Chamber’s judgment on this point, presumably also in light of the dissenting opinion expressed by one of the judges.18 Notably, the Grand Chamber relied on the settled case-​law regarding the notion of ‘dispute 15

16

17 18

Naït-​Liman (GC) (n 1) paras 45–​66. The Court made reference in particular to Article 14 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted on 10 December 1984, entered into force on 26 June 1987) 1465 unts 85 (cat) and to the practice of the Committee against Torture as well as academic opinions relating to the scope of application of this provision; to Article 16 of the Convention Relating to the Status of Refugees (adopted on 28 July 1951, entered into force on 22 April 1954)  189 unts 137 (Geneva Convention); to the ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law’, UNGA Res 60/​147 (16 December 2005)  UN Doc A/​RES/​60/​147; to the Resolution adopted by the Institut de droit international (idi) on 30 August 2015, entitled ‘Universal Civil Jurisdiction with regard to Reparation for International Crimes’; and to the relevant work of the idi and the International Law Association (ila) on the forum of necessity, namely Committee on International Civil Litigation and the Interests of the Public, ‘Resolution no 2/​2012’ in International Law Association Report of the Seventy-​Fifth Conference (Sofia 2012) (International Law Association, London 2012). Naït-​Liman (GC) (n 1)  paras 67–​93. The Court relied in particular on the practice of Council of Europe member States and non-​member States relating to universal jurisdiction for civil actions to obtain compensation for damage sustained as a result of torture and to the possibility of joining criminal proceedings as a civil party; and to the domestic and EU legislation on the so-​called forum of necessity. Naït-​Liman (GC) (n 1) para 105. See the dissenting opinion of Judge Wojtyczek, appended to the Grand Chamber’s judgment, according to which Article 6 echr would not apply in the instant case, since the dispute brought before the Swiss courts fell outside the scope of the Swiss Confederation’s jurisdiction and ‘the majority has established a scope of application for Article 6 of the Convention which exceeds the scope of the Convention as defined in Article 1’.

10 Saccucci concerning the determination of civil rights or obligations’ to conclude that, in the case under examination, there was a ‘genuine dispute’ between the parties (which did not concern the existence of a right of victims of torture to obtain compensation, but rather its extraterritorial scope and the manner of its exercise); that it was not in dispute between the parties that the right of compensation was a civil one; and that this right was, at least on arguable grounds, recognized under Swiss law.19 In this latter respect, the Court gave particular weight to the international sources recognizing the right of victims of acts of torture to obtain redress and a fair and adequate compensation, pointing out –​in line with its caveat at para 97 –​that this right ‘is firmly embedded, as such, in general international law’. It then found that the question of whether the States parties to the 1984 UN Convention against Torture (cat), including Switzerland, are under an obligation to guarantee this right even for acts of torture perpetrated outside their territory by foreign officials was ‘not decisive for the applicability of ­Article 6’.20 In spite of the criticisms expressed by Judge Wojtyczek regarding the applicability of Article 6 echr in light of the scope ratione loci of the Convention as defined in Article 1 echr,21 the conclusion reached by the majority on this point is hard to refute and appears to be fully consistent with the Court’s previous jurisprudence. For instance, in Markovic v Italy, the Grand Chamber held that the Contracting Parties cannot simply dismiss the invocation of Article 6 echr in this regard by finding that they have no jurisdiction in the private international law sense and by concluding that the Convention therefore does not apply pursuant to Article 1 echr.22 In Naït-​Liman, the ruling of the domestic courts on the lack of territorial jurisdiction was at the core of the applicant’s complaint and was challenged as disproportionally affecting his right of access to a court. To find that an applicant cannot rely on the protection of Article 6 echr because domestic courts declined jurisdiction in accordance with the relevant provisions of domestic law would be tantamount to nullify the Court’s competence to 19 20 21 22

Naït-​Liman (GC) (n 1) paras 106–​108. ibid para 109. Dissenting Opinion of Judge Wojtyczek (n 18). Markovic and others v Italy App no 1398/​03 (ECtHR, GC, 14 December 2006)  para 54, where the Grand Chamber stated that the extraterritorial nature of the events alleged to have been at the origin of an action ‘cannot under any circumstances affect the jurisdiction ratione loci and ratione personae of the State concerned’ so that ‘once a person brings a civil action in the courts or tribunals of a State, there indisputably exists, without prejudice to the outcome of the proceedings, a “jurisdictional link” for the purposes of Article 1’.

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review the alleged arbitrariness or manifest unreasonableness of the domestic courts’ decision from the point of view of the Convention. Such a review necessarily entails an examination of the merits of the complaint and cannot be exercised under the narrow purview of the admissibility requirement concerning the applicability of Article 6 echr in light of Article 1 echr, even if it leads to the conclusion –​as it did in the present case –​that the domestic courts’ decision finding that the applicant’s claim fell outside the territorial jurisdiction of the forum State because of the lack of a sufficient connection is not arbitrary or manifestly unreasonable and is, therefore, legitimate under Article 6 echr. Moreover, to hold that the applicant’s claim falls outside the ‘jurisdiction’ of the respondent State under Article 1 echr as a result of the lack of domestic jurisdiction –​as maintained by Judge Wojtyczek –​would mean by implication that, under international law, a State is not permitted to exercise its civil jurisdiction in relation to acts of torture perpetrated abroad by foreign officials in the absence of a sufficient link (and that therefore its ‘jurisdiction’ for the purpose of Article 1 echr is limited by international law): a conclusion that the Grand Chamber did not reach on the basis of the relevant international and national law and practice insofar as it denied the existence of an international obligation to provide ucj, but not also of a mere faculty.23 Turning to the merits of the complaint, the ECtHR premised its findings on three general principles governing the right of access to a court. First, it reiterated that this right is not absolute, but may be subject to limitations, and that those limitations ‘must not restrict or reduce a person’s access in such a way or to such an extent that the very essence of the right is impaired’.24 Second, it stated that such limitations will not be compatible with Article 6 echr ‘if they do not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved’.25 Third, it recalled that, in assessing the application of domestic law regulating the right of access to a court, it ‘cannot call into 23 24

25

See below Section 4, especially text to n 35. Naït-​Liman (GC) (n 1) para 114. As it will be further explained below, the Grand Chamber has then failed to carry out any assessment of the actual compliance with this requirement in the context of the proportionality test. The selective application of the interpretative principles identified by the Grand Chamber is emphasized also by Judge Wojtyzeck in his dissenting opinion on the applicability of Article 6 echr, at para 8, where he finds that ‘the majority fails to assess whether or not the restrictions imposed impair the very essence of the right to a court. This principle is set out solemnly, but does not seem to be taken very seriously’. Naït-​Liman (GC) (n 1) para 115.

12 Saccucci question the findings of the domestic authorities (…) unless they are arbitrary or manifestly unreasonable’.26 In addressing the applicant’s complaint under these principles, the Grand Chamber concluded that the decision of the Swiss courts to refuse to entertain the applicant’s civil action for damages pursued ‘legitimate aims’ (ie ensuring the proper administration of justice and maintaining the effectiveness of domestic judicial decisions) and could not be regarded as ‘disproportionate’ to the aims pursued, having regard to the ‘wide margin of appreciation’ enjoyed by States in this field as a result of the lack of specific obligations under public international law to open States’ courts to compensation claims for acts of torture perpetrated outside the State territory by the officials of a foreign State on the basis of either ucj or fnj. Unlike the Chamber, which had first examined whether the domestic courts’ decision on fnj was arbitrary or manifestly unreasonable under Article 6 echr and then assessed whether any other ‘relevant rule of international law applicable in the relations between the parties’ imposed an obligation on Contracting States to accept ucj or fnj for victims of torture that could warrant a different conclusion,27 the Grand Chamber addressed this latter question within the framework of the proportionality test in order to determine the (narrow or wide) scope of the ‘margin of appreciation’ enjoyed by States in restricting access to court in such instances.28 This approach seems in principle more appropriate. As in relation to immunities-​related issues, public international law may become relevant

26 27 28

ibid para 116. ibid paras 106–​114 and paras 115–​120, respectively. ibid para 181, where the Grand Chamber stated that the conclusions drawn from the assessment of ‘whether the Swiss authorities were legally bound to open their courts to the applicant, by virtue either of universal civil jurisdiction for torture, or of the forum of necessity’ would serve ‘to determine the scope of the margin of appreciation enjoyed by those authorities in this case’. As pointed out by Rietiker (n 1) 6, the Grand Chamber determined the latitude of the State’s margin of appreciation exclusively on the basis of the existence (or absence) of an international consensus, without taking into account the nature and importance of the right at stake, the intensity of the interference, as well as the nature and importance of the aims allegedly pursued. This approach is criticized as not being consistent with the ECtHR’s case-​law, which has admitted, in Emonet v Switzerland App no 39051/​03 (ECtHR, 13 December 2007) para 68, that the margin of appreciation ‘varies according to the nature of the activities restricted and of the aims pursued by the restrictions’ and, in Dickson v United Kingdom App no 44362/​04 (ECtHR, GC, 4 December 2007) para 78, that ‘where a particularly important facet of an individual’s existence or identity is at stake […], the margin of appreciation accorded to a State will in general be restricted’.

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under Article 6 echr for the purpose of assessing whether the restrictions on the right of access to a court are justified. Even if an obligation could be established under other sources of international law to open States’ courts to civil claims for acts of torture perpetrated abroad with no sufficient territorial connection on ground of ucj or fnj, this obligation would still not be absolute, but subject to limitations, whose compatibility with Article 6 echr would ­ultimately depend on the proportionality test. With regard to the existence of a ‘legitimate aim’, the Grand Chamber has largely embraced the Government’s position regarding the possible adverse impact of ucj (or of a broader interpretation of fnj) on the proper administration of justice and on the effectiveness of domestic judicial decisions. According to the ECtHR, an action such as the applicant’s would pose considerable problems in terms of gathering and assessing evidence, would entail practical difficulties in the enforcement of any judgment giving effect to such an action, would encourage forum shopping and attract many similar complaints from other victims of torture, thus resulting in an ‘excessive workload for the domestic courts’, and would also raise ‘potential diplomatic difficulties’ for the forum State.29 Leaving aside the fact that each and all these considerations could be easily refuted and their ‘legitimacy’ under the Convention called into question,30 the real concern is that the Grand Chamber’s stigmatization of ucj and fnj’s possible disadvantages may amplify the ‘chilling effect’ of its ruling on the development of States’ practice in relation to the exercise of jurisdiction on compensation claims for acts of torture perpetrated outside their geographical frontiers. Indeed, the ‘legitimate aims’ listed in the judgment seem to reflect an underlying negative appreciation by the majority of the Grand Chamber regarding the ‘judicial expediency’ and ‘political appropriateness’ of exercising civil jurisdiction over such claims and may well be used by the States’ legislators and courts as a justification not to broaden the scope of their civil jurisdiction, thereby making void the efforts of the international community

29 30

Naït-​Liman (GC) (n 1) paras 123–​126. In this respect, see the articulated criticisms expressed by Judge Dedov in his dissenting opinion appended to the Grand Chamber’s judgment (notably, paras 92–​100). For De Marziis (n 1) 695, it is at least questionable that the right of access to a court can be subject to an ex ante assessment of the practical difficulties that could theoretically arise out of a finding of jurisdiction and of a possible upholding of the applicant’s claim. Similar criticisims are also expressed by S Forlati, ‘The Role of the European Court of Human Rights in the Development of Rules on Universal Civil Jurisdiction’, in this volume.

14 Saccucci to encourage an improvement in this area.31 In light of this negative appreciation, the invitation addressed to the Contracting States ‘to take account in their legal orders of any developments facilitating effective implementation of the right to compensation for acts of torture, while assessing carefully any claim of this nature so as to identify, where appropriate, the elements which would oblige their courts to assume jurisdiction to examine it’ may well sound purely rhetorical. With regard to proportionality, the ECtHR addressed in turn whether the Swiss authorities were legally bound under international law to open their courts to the applicant by virtue of ucj or of fnj for the purpose of determining the scope of the margin of appreciation enjoyed by those authorities under Article 6 echr and whether the refusal to entertain the applicant’s claim amounted to a disproportionate interference with his right of access to a court, and came to a negative conclusion in respect of both questions. 4

The Determination of the Scope of the Margin of Appreciation of the Contracting States in Restricting the Right of Access to a Court through the Lens of International Customary and Treaty Law on ucj and fnj

Regarding ucj, based on the analysis of the relevant international and national law and practice, the Court held that ‘[a]‌lthough the States’ practice is evolving, the prevalence of universal civil jurisdiction is not yet sufficient to indicate the emergence, far less the consolidation, of an international custom which would have obliged the Swiss courts to find that they had jurisdiction to examine the applicant’s action’32 and that ‘as it currently stands, international treaty law also fails to recognise universal civil jurisdiction for acts of torture, obliging the States to make available, where no other connection with the forum is present, civil remedies in respect of acts of torture perpetrated outside the State territory by the officials of a foreign State’.33

31

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Heri (n 1) 2 acknowledges that ‘the Court’s terse acceptance of the difficulties involved in the exercise of universal civil jurisdiction may indeed nourish doubts about its appropriateness and legality’. In commenting the Chamber’s judgment, Ryngaert (n 3) 805, argued that the Chamber not only found that there was no obligation under international law to recognize universal civil jurisdiction, but even potentially undermined such an obligation by expressing doubts about its appropriateness and legality. Naït-​Liman (GC) (n 1) para 187. ibid para 188.

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This conclusion is certainly sound from the point of view of general international law,34 less so from the point of view of treaty law. In relation to the former, States’ practice is still too uncertain and inconsistent to warrant the conclusion that States have an obligation under customary international law to provide ucj for acts of torture perpetrated abroad even in cases where the victim would otherwise be left with no alternative effective remedy, thereby facing a denial of justice (a consideration which, instead, may have decisive weight under Article 6 echr). Two questions, however, seem to have been left open by the Grand Chamber under this head. First, while there is no obligation to provide ucj, the exercise of ucj is still permissible under general international law. The Court has not been explicit about this (as it would have been certainly desirable), but the acknowledgement that some countries currently recognize ucj and that States’ practice is evolving in this respect as well as the fact that the application was not declared inadmissible as falling outside the ‘jurisdiction’ of the Convention under Article 1 echr suggest that the ECtHR has admitted, at least implicitly, that States are permitted (and even encouraged) to establish their civil jurisdiction in relation to torture compensation claims which do not have any significant connection or which have only a very tenuous connection with the forum State.35 Second, the Court has not made a definite finding on whether (and under which conditions) an obligation to provide ucj under general international law may be established where the State exercises universal criminal jurisdiction in relation to extraterritorial acts of torture and the national legal system allows the victim to join the criminal proceedings as a civil party. In this respect, the Grand Chamber noted that the possibility of joining a compensation claim to ongoing criminal proceedings presents ‘ “fewer practical difficulties” and that it is therefore “natural and legitimate” for the States to accept more easily such a procedure (…) without however recognizing universal jurisdiction in the context of autonomous civil proceedings’.36 However, it did not give further consideration to this issue since the applicant had in fact

34 35

36

Bonafé (n 3) 1105; Ryngaert (n 3) 786 ff. This reading is generally upheld by the commentators of the Grand Chamber’s judgment; see, for instance, Heri (n 1) 2. According to Ryngaert (n 3) 794, however, ‘in the absence of any contemporary positive practice on universal civil jurisdiction, it may be difficult to prove the existence of a permissive norm’. The existence of a faculty for the States to exercise ucj has been sometimes contested in the legal doctrine: see, for instance, D Wallach, ‘The Irrationality of Universal Civil Jurisdiction’ (2015) 46 Georgetown J Intl L 803. Naït-​Liman (GC) (n 1) para 185.

16 Saccucci lodged a criminal complaint and applied to join the proceedings as a civil party, but that complaint had been discontinued on the ground that the former Minister of Interior had meantime left the Swiss territory and the applicant had not challenged this decision nor there had been any established negligence on the part of the prosecuting authorities in conducting the criminal proceedings.37 In relation to treaty law, the reasoning of the Grand Chamber is not entirely convincing with regard to both Article 14 of the cat and Article 16 of the 1951 Geneva Convention Relating to the Status of Refugees (Geneva Convention). As to the former, the Grand Chamber held that there is no conclusive element that would support an interpretation of that provision as imposing on the contracting States an obligation to ensure in their legal system that the victim of an act of torture is entitled to enjoy an enforceable right to fair and adequate compensation also in situations in which the act of torture was perpetrated outside the States’ territory by officials of a foreign State. In reaching this conclusion, the ECtHR minimized the clear stand of the UN Committee against Torture in favor of the extraterritorial scope of application of Article 14 cat as expressed in General Comment no 3 (2012),38 by giving weight to the more ‘reserved attitude’ of the Committee in the examination of individual communications,39 to the opinion of the rapporteur of the Institut de droit international (idi) in its background report to the 2015 Resolution on universal civil jurisdiction,40 and to the lack of unanimous opinions 37 See supra para 2, especially (n 11). 38 Naït-​Liman (GC) (n 1)  para 189, by reference to paras 52–​53. Notably, the Committee against Torture stated as follows: ‘The Committee considers that the application of article 14 is not limited to victims who were harmed in the territory of the State party or by or against nationals of the State party. The Committee has commended the efforts of States parties for providing civil remedies for victims who were subjected to torture or ill-​treatment outside their territory. This is particularly important when a victim is unable to exercise the rights guaranteed under article 14 in the territory where the violation took place. Indeed, article 14 requires States parties to ensure that all victims of torture and ill-​ treatment are able to access remedy and obtain redress’; see ‘General Comment 3 (2012) on implementation of article 14 by States parties’ (13 December 2012) UN Doc CAT/​G/​GC/​ 3, para 22. 39 Naït-​Liman (GC) (1) para 190 with reference to paras 54–​55. 40 ibid para 196 with reference to para 63. In this respect, the Court held that the ‘rapporteur expressed the view that Article 14 of the Convention against Torture does not impose universal civil jurisdiction in the area of international crimes’. However, the rapporteur was much more careful in excluding that Article 14 of the cat could be applied to acts of torture committed abroad by foreign officials. He rather excluded such an obligation ‘in respect of acts having no connection with that State or for victims whose protection does not fall within its sphere of interest, whether that is expressed in terms of jurisdictional

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among academics on whether Article 14 of the cat must be regarded as having extraterritorial applicability even where the act of torture was perpetrated by officials of a foreign State.41 It further considered that neither the travaux préparatoires of Article 14 of the cat42 nor the absence of reservations aimed at limiting its extraterritorial application, with the exception of one reservation by the United States,43 could be decisive indications in order to support a different conclusion. While the ECtHR might have felt uncomfortable to be the forefront of an extensive interpretation of Article 14 of the cat, the materials before it strongly weighted in favor of the recognition of its applicability to extraterritorial claims at least ‘when a victim is unable to exercise the rights guaranteed under article 14 in the territory where the violation took place’.44 The somehow

41

42

43

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criteria, political stakes, or in any other manner’ (para 65; emphasis added). Arguably a State that has granted refugee status to a victim of torture may be regarded as having taken the protection of that victim into ‘its sphere of interests’. Naït-​Liman (GC) (n 1), para 196 with reference to paras 56–​58. According to some authors, Article 14 cat does not lay down an obligation to exercise universal jurisdiction, but nor does it prohibit States from providing such a possibility. See M Nowak and E McArthur, The United Nations Convention against Torture: A Commentary (1st edn, oup 2008) 494 ff; K Parlett, ‘Universal Civil Jurisdiction for Torture’ (2007) 4 Eur Human Rights L Rev 385, 398. Other authors argue that Article 14 does apply to acts of torture committed abroad given that it provides for no geographical limitation. See CK Hall, ‘The Duty of States Parties to the Convention against Torture to Provide Procedures Permitting Victims to Recover Reparations for Torture Committed Abroad’ (2007) 18 EJIL 921, especially 926; A Orakhelashvili, ‘State Immunity and Hierarchy of Norms: Why the House of Lords Got It Wrong’ (2007) 18 EJIL 955, especially 961. Still other commentators consider that no inference can be drawn from Article 14 of the cat as to whether a State Party is obliged to make available to victims of torture remedies in respect of acts which were perpetrated outside its jurisdiction. See PD Mora, ‘The Legality of Civil Jurisdiction over Torture under the Universal Principle’ (2009) 52 German Ybk Intl L 367, especially 373. A proposal by the Netherlands to insert in Article 14 of the cat the words ‘committed in any territory under its jurisdiction’ had disappeared when the Convention was adopted. However, the Grand Chamber pointed out that the reasons for this omission remain unclear, by referring to Nowak and McArthur (n 41) 457, and that, in those circumstances, ‘it is difficult to attach decisive importance to it’. This argument has been elaborated in particular by Amnesty International and by the International Commission of Jurists in their third-​party submissions before the Grand Chamber, where they pointed out that Article 14 of the cat did not provide for any geographical limitation to its application and that the absence of such a limitation was corroborated by the States’ practice given that of the 160 States parties only the United States had placed a reservation on the geographical scope of Article 14. The full text of the submissions is available at (last accessed 31 December 2019). See General Comment no 3 (n 38)  para 22. According to Judge Dedov, the Grand Chamber failed properly to account for the Committee against Torture’s comments on

18 Saccucci unclear reasonings underlying the decisions of the Committee against Torture on the individual communications in Marcos Roitmann Rosenmann v Spain and in Z v Australia45 is overweighed by the authority of its interpretation in General Comment no 3, which was then reiterated in several Concluding observations on the examination of States parties’ periodic report46 and which was also endorsed by the Special Rapporteur on Torture.47 The object and purpose of the cat also points to this conclusion.48 The Grand Chamber’s interpretative self-​restraint in this case is clear if one looks at the much more ‘open-​minded’ approach it adopted with regard to a similar issue of interpretation concerning the extraterritorial scope of application of the prohibition of collective expulsion of aliens laid down in Article 4 of Protocol No 4 to the echr, –​which, however, the Court is statutorily competent to interpret and apply. Notably, in Hirsi Jamaa and others, the ECtHR was ready to give decisive weight to the object and purpose of the provision in order to extend its application to the forced return of migrants intercepted in high seas (ie outside

45

46

47

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the interpretation of Article 14 of the cat in light of the object and purpose of the cat expressed in its Preamble ‘to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world’. See Committee against Torture, Marcos Roitmann Rosenmann v Spain, communication no 176/​2000, decision of 30 April 2002, para 6.6, which concerned the handling of an extradition request of General Pinochet when he was residing in the United Kingdom; Z v Australia, communication no 511/​2012, decision of 26 November 2014, para 6.3, which concerned the dismissal on ground of immunity of a civil claim brought by the complainant before the Australian courts for acts of torture committed in China by Chinese officials. It is worth noting that, in the latter case, the Committee reiterated its position that ‘the application of article 14 is not limited to victims who were harmed in the territory of the State party or by or against nationals of the State party’. See, for instance, Committee against Torture, ‘Concluding observations of the Committee against Torture on the sixth periodic report of Canada’ (25 June 2012) UN Doc CAT/​C/​ CAN/​C/​6, para 15, where the State party was invited to ‘ensure that all victims of torture are able to access remedy and obtain redress, wherever acts of torture occurred and regardless of the nationality of the perpetrator of the victim’. unhchr, ‘Interim report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E Méndez, submitted in accordance with Assembly resolution 68/​156’ (7  August 2015)  UN Doc A/​70/​303, para 56, according to which ‘article 14 is not geographically limited on its face and will apply no matter where the torture takes place’. According to Pavoni (n 1) 892, notwithstanding the objective uncertainty regarding the scope of application of Article 14 of the cat, it is plausible to conclude that the raison d’être of this provision amounts to commit the Contracting States to introduce in their legal systems titles of jurisdiction that are coherent with the construction on a global scale of a full system of judicial protection for compensation claims of victims of torture.

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the territory of the Contracting State) even if the ‘materials’ at its disposal (including the wording of the provision and its travaux préparatoires) were much less conclusive.49 The absence of any reference to the notion of ‘territory’ in Article 4 of Protocol No 4 was taken as an indication that its extraterritorial application was in principle not excluded even if the travaux préparatoires were not explicit as regards its scope of application and ambit and even if the Government had argued that the use of the word ‘expulsion’ entailed the ‘presence’ of the alien on the territory of the State. On the contrary, the absence of any such reference to ‘territory’ in Article 14 of the cat –​ in spite of its drafting history and of General Comment no 3 –​was deemed insufficient to reach a similar conclusion on the extraterritorial reach of its application. On a different note, the fact that many Contracting States of the cat (including the 39 European States considered by the Grand Chamber, with the sole exception of the Netherlands and possibly of Italy50) have not yet followed 49

50

Hirsi Jamaa and others v Italy App no 27765/​09 (ECtHR, GC, 23 February 2012)  paras 166–​182. The Court noted, in particular, that ‘while the cases thus far examined have concerned individuals who were already, in various forms, on the territory of the country concerned, the wording of Article 4 of Protocol no 4 does not in itself pose an obstacle to its extraterritorial application’ (para 173) and that this provision should be interpreted taking into account its purpose and meaning ‘which must themselves be analysed in the light of the principle, firmly rooted in the Court’s case-​law, that the Convention is a living instrument which must be interpreted in the light of present-​day conditions’ (para 175). In respect of Italy, the Grand Chamber’s analysis is not entirely clear. It noted that there is neither a provision of positive law nor clear case-​law conferring on the civil courts universal jurisdiction for compensation claims in cases of torture and crimes against humanity. However, it acknowledged that part of Italian academic opinion considers that certain decisions by the Italian courts (including the Court of Cassation’s judgment in the Ferrini case) may be moving in the direction of recognizing such jurisdiction, placing particular emphasis on the need to ensure respect for jus cogens as a fundamental value of the international community. The ECtHR then referred to the judgment by the International Court of Justice of 3 February 2012, in the case on Jurisdictional Immunities of the State (Germany v Italy:  Greece intervening), which found that Italy had breached customary international law guaranteeing States jurisdictional immunity, but it did not explain the meaning and relevance of this judgment for the purpose of establishing ucj nor it considered the Constitutional Court’s judgment no 238 of 22 October 2014, which gave precedence to the protection of the right of access to a court over the customary rule on the immunity of foreign States. In any event, it should be recalled that the Court of Cassation has later denied that the Constitutional Court’s judgment may be invoked to assert the existence in the Italian legal system of a principle of ucj for compensation claims arising out of delicta imperii (see Corte di Cassazione, Joint Chambers, judgment no 21946 of 28 October 2015, (2017) 53 rdipp 382).

20 Saccucci the indication of the Committee against Torture on the extraterritorial application of Article 14 of the cat is not sufficient to establish the existence of an interpretative practice according to Article 31(3)(b) of the Vienna Convention on the Law of the Treaties excluding the obligation of States to secure a forum in their own jurisdiction for compensation claims relating to acts of torture perpetrated abroad, as suggested by the Chamber.51 As to Article 16 of the Geneva Convention, the analysis of the Grand Chamber appears to be largely unsatisfactory and superficial.52 According to this provision, a refugee shall have free access to the courts of law on the territory of all Contracting States and shall enjoy in the Contracting State in which he has his habitual residence ‘the same treatment as a national in matters pertaining to access to the Courts’. In this respect, the ECtHR held that, even supposing that the applicant had duly raised this complaint before the domestic courts, he could not extract an additional argument from it in support of his complaint because the text of Article 16 ‘refers in general terms to the right of refugees to have access to a court, but does not guarantee as such the right to bring proceedings against a foreign State or one of its officials for acts of torture committed abroad’.53 While the ECtHR seems to have called into question the proper exhaustion of domestic remedies with regard to the application of Article 16 of the Geneva Convention,54 its conclusion that this provision does not have any bearing on the question of asserting the jurisdiction of the State of residence of the refugee in respect of extraterritorial torture-​related claims is far from convincing. 51 See Naït-​Liman (GC) (n 1) para 118. As rightly pointed out by Pavoni (n 1) 891, this situation can also be regarded as an example of non-​compliance by the European States with the indication of the Committee against Torture regarding the extra-​territorial application of Article 14 of the cat. 52 While mentioning Article 16 of the Geneva Convention in the discussion of the relevant international law (see para 47), the Chamber judgment did not give any consideration to this provision in its reasoning. 53 Naït-​Liman (GC) (n 1) para 197. 54 Notably, the Grand Chamber expressed doubts as to whether the applicant had duly raised this complaint before the domestic courts because he had simply referred, in very general terms, to this provision in the proceedings before the fsc ‘without explaining for what reason and in what respect it could have been relevant to the complaint forming the subject of the present application’, ibid para 197. However, it is at least questionable that the rule of prior exhaustion under Article 35(1) echr may be interpreted as requiring the applicant to explicitly raise the alleged breach of a non-​e chr treaty obligation before the domestic courts and to explain why such breach may be relevant for his complaint under the echr.

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Notably, the Grand Chamber seems to have completely overlooked the second paragraph of Article 16, which establishes a specific obligation –​complementing the general right of access enshrined in paragraph 1 –​to accord to a refugee the same treatment as a national in the regulation of the right of access to a court.55 In this regard, one may wonder –​and the Court could have elaborated more on –​whether this clause of equal treatment should be interpreted as implying that States are obliged to open their courts to extraterritorial torture claims by considering the ‘habitual residence’ of the refugee victim of torture as a ‘sufficient connection’ with the forum State to the same extent as they would consider the ‘nationality’ of the victims of torture a sufficient basis for asserting their civil jurisdiction under fnj. In fact, there is no obstacle to hold that equal treatment should be accorded not only with reference to ‘procedural rules’ but also with reference to ‘jurisdictional rules’ so that a refugee can rely on the very same titles of jurisdiction on which a citizen would be allowed to rely in similar circumstances according to the applicable private international law provisions of the Contracting State.56 In such a scenario, the fact that the applicant had been granted Swiss citizenship immediately after the decision of the fsc would be irrelevant in so far as the applicant had established his habitual residence in Switzerland since the recognition of his refugee status under the Geneva Convention in 2003 because of the torture suffered in Tunisia, which was moreover the object of his civil claim. The question which remained unanswered by both the ECtHR and by the fsc is whether, in a situation comparable to that of the applicant, a Swiss national would be entitled to rely on fnj under Article 3 of the ldpi. The answer seems to be negative for the fsc according to which ‘it is the “cause” –​ which concerns the set of facts and the legal argumentation –​rather than the person of the applicant which must have a sufficient connection with Switzerland’.57 55

56 57

The connection between Article 16 of the Geneva Convention and Article 6 echr is pointed out in unchr, ‘Commentary of the Refugee Convention 1951 (Articles 2–​11, 13–​37)’, October 1997, available at 38 (last accessed 31 December 2019). In his dissenting opinion, Judge Dedov seems to have adhered to this reading. In this respect, the Swiss Government argued that ‘the criterion of nationality had not been retained as one of those generally accepted as giving access to a forum of necessity’ and that ‘[a]‌lthough nationality could be a decisive criterion on which to base jurisdiction in Switzerland with regard to the law of persons and in certain areas of family law (and, to a lesser extent, the law of obligations), it did not constitute, in itself and in every case, a “sufficient connection” required by law’, see Naït-​Liman (GC) (n 1) para 153.

22 Saccucci Some support in favor of such a conclusion may however be drawn from the Resolution no 2/​2012 adopted by the Committee on International Civil Litigation and the Interests of the Public of the International Law Association (ila), concerning civil claims arising out of serious human rights violations, according to which ‘a sufficient connection’ may consist inter alia in ‘the nationality of the claimant or the defendant’.58 From its side, the ECtHR seems to have accepted that the nationality of the applicant could be a relevant connecting factor, if present at the time of the relevant events, for the purpose of reviewing the reasonableness of the interpretation of fnj by domestic courts. It is worth to note in this regard that the Grand Chamber ruled out the relevance of the judgment in Arlewin because this case concerned defamation proceedings brought against a television program ‘which adversely affected the reputation of Swedish nationals who were resident in Sweden’ (emphasis added) so that the question of possible forum of necessity did not arise.59 In any case, while an interpretation of Article 16 of the Geneva Convention imposing an ‘equal’ appreciation of the requirement of the ‘sufficient connection’ in respect of ‘habitual residence’ and ‘nationality’ for the purpose of fnj would not amount to a general recognition of ucj, such an interpretation would certainly be material in respect of the proportionality test to be carried out under Article 6 echr. From a more general perspective, the Grand Chamber failed to consider, under the Geneva Convention, whether the applicant was able to effectively avail himself of the legal protection of Tunisia by bringing his claims before Tunisian courts for the purpose of establishing whether his right of access was impaired in its essence in the context of the proportionality test. We will return on this point in the following paragraph. After examining the issue of ucj, the Grand Chamber briefly turned to the question of whether international law imposed an obligation on States to make fnj available to the applicant so that his compensation claim in respect of the alleged damages sustained as a result of human rights violations could be entertained. Here again the conclusion is that neither international customary 58

(n 15), emphasis added. According to Ryngaert (n 3) 802, while the later presence or even residence of the claimant is of no moment, ‘it is the offense, its perpetrator(s) or its victim(s) which at the moment of the commission of the act needed to be connected with the forum (under the territoriality or personality principle)’ (emphasis added). 59 See Naït-​Liman (GC) (n 1) para 215, distinguishing the case from Arlewin v Sweden App no 22302/​10 (ECtHR, 1 March 2016) paras 59–​74.

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law nor international treaty law provide for such an obligation, although they do not prohibit the introduction of a forum of necessity in order to widen the jurisdiction of domestic courts.60 This conclusion is hardly refutable with respect to treaty law at least in the specific field of compensation claims for wrongful acts based on the general law of torts. A few exceptions –​which the Court itself mentioned –​ can be found in EU law with regard to succession matters, maintenance obligations and the property regimes of married couples and registered ­partners.61 With respect to international customary law, however, while it is generally accepted that there is no specific obligation for States to provide fnj as such,62 a different conclusion may be reached regarding the existence of an 60

61

62

The permissibility of fnj under international law seems to be implicitly acknowledged by the Court when it stated that ‘the mere fact of introducing a forum of necessity, designed as it is to widen the jurisdiction of the national courts rather than reduce it, clearly cannot constitute overstepping by the legislature of its margin of appreciation’ under Article 6 echr, see Naït-​Liman (GC) (n 1) para 206. For further details on the provision of the forum of necessity as a residual title of jurisdiction in different European and non-​European legal systems see G Rossolillo, ‘Forum necessitatis e flessibilità dei criteri di giurisdizione nel diritto internazionale private nazionale e dell’Unione europea’ (2010) 2 Cuad der transnl 403. The Grand Chamber referred in particular to Regulation (EU) 650/​2012 of the European Parliament and of the Council of 4 July 2012 on Jurisdiction, Applicable Law, Recognition and Enforcement of Decisions and Acceptance and Enforcement of Authentic Instruments in Matters of Succession and on the Creation of a European Certificate of Succession [2012] OJ L201/​107, Article 11; Council Regulation (EC) 4/​2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations [2009] OJ L7/​1, Article 7; Council Regulation (EU) 2016/​1103 of 24 June 2016 Implementing Enhanced Cooperation in the Area of Jurisdiction, Applicable Law and the Recognition and Enforcement of Decisions in Matters of Matrimonial Regimes [2016] OJ L183/​1, Article 11; Council Regulation (EU) 2016/​1104 of 24 June 2016 Implementing Enhanced Cooperation in the Area of Jurisdiction, Applicable Law and the Recognition and Enforcement of Decisions in Matters of the Property Consequences of Registered Partnerships [2016] OJ L183/​30, Article 11. All of the abovementioned expressly provide in similar terms for a forum of necessity. However, the Court also pointed out that a similar provision is not contained in the recast version of the Brussels I Regulation (known as ‘Brussels I bis’), introduced by Regulation (EU) 1215/​ 2012 of the European Parliament and of the Council of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Recast) [2012] OJ L351/​1. See Ryngaert (n 3) 797, according to whom ‘[w]‌hether or not State provides for forum of necessity appears to be a matter of State discretion and of (domestic) private international law’. A different opinion is expressed in a 2007 report of the European Commission

24 Saccucci obligation to avoid denial of justice in respect of compensation claims for serious human rights violations perpetrated abroad. Indeed, the international law and practice referred to by the Court in its judgment warrants the conclusion that such an obligation may arguably be established. Under this obligation, the focus shifts from the requirement of a ‘sufficient connection’ with the forum State to that of the existence of an ‘effective alternative forum’ for the claimant. The fact therefore that there is no obligation under customary international law to provide for fnj does not mean that States are not obliged to assert their civil jurisdiction over a torture-​related compensation claim when otherwise the victim would be left without any other form of effective legal protection in order to avert a denial of justice. As pointed out by the ila’s Committee on International Civil Litigation, a denial of justice in this context occurs when ‘no other court is available’ or ‘the claimant cannot reasonably be expected to seize another court’.63 The same preparatory works of Article 3 ldip seem to attach more weight on balance to the availability of an alternative forum rather than to the existence of a sufficient link, by stating that ‘[t]‌he Swiss authorities are bound to declare themselves competent even in cases presenting a highly tenuous connection with [the] country where it is impossible to bring an action or lodge an appeal abroad’. The possibility to disjoin fnj from what we could call a forum for alternative justice (faj) is confirmed by the fact that in some legal systems, like in France, while private international law does not include the jurisdictional principle of forum of necessity as such, national courts have held that they have jurisdiction on the basis of international public policy and in order to avoid a denial of justice. It is also confirmed by the practice relating to the principle of forum non conveniens, which enables a court to refuse to examine a case if a court of another State has a more ‘appropriate connection’ with the dispute, provided that –​as recognized by the Grand Chamber –​‘the court before which a forum non conveniens claim is brought

63

on residual jurisdiction, where fnj is characterized as ‘a general principle of international law’ (see A Nuyts, ‘Study on Residual Jurisdiction: General Report’ 3 September 2007, available at (last visited 26 May 2020). See para 2.3(2) of the Resolution no 2/​2012 (n 15). As noted by Ryngaert (n 3) 799, while the ila still requires a connection to the forum, ‘the analysis concerning forum of necessity gravitates away from the connection requirement toward averting a denial of justice and providing accountability’.

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does not relinquish jurisdiction without verifying that an alternative forum exists’.64 As will be explained below, to focus on the effective alternative forum rather than on the existence of a sufficient link also substantially affects the proportionality test under Article 6 echr. 5

The Assessment of the Proportionality of the Restriction on the Right of Access to a Court in Light of the Wide Margin of Appreciation Enjoyed by States Due to the Lack of International Obligations on ucj or fnj

In light of the previous analysis, the Grand Chamber premised it assessment of the proportionality of the restriction on the applicant’s right of access to a court on the assumption that the Swiss authorities enjoyed a ‘wide margin of appreciation in this area’65 and that its competence to ascertain whether that margin of appreciation was overstepped in the present case was thus limited in scope. Notably, the Grand Chamber –​as the Chamber –​carried out its review on the basis of the narrower paradigm of the absence of ‘arbitrary or manifestly unreasonable elements’ in the domestic courts’ decisions, instead than on the basis of the broader paradigm of the absence of ‘reasonable justification’ as in immunity-​related cases. Given that the two cumulative conditions laid down in Article 3 ldip  –​ namely, the existence of a sufficient connection and the absence of another forum with jurisdiction over the case –​fully correspond to the prevailing notion of fnj in the international and national law and practice examined above, the ECtHR held that the Swiss legislature did not overstep its margin of appreciation in this respect.66 It further held that the fsc’s interpretation of Article 3 ldip –​and notably of the notion of the term ‘cause’ for the purpose of assessing the existence of the requirement of the ‘sufficient connection’ –​did not present any arbitrary or manifestly unreasonable elements exceeding the State’s wide margin of appreciation in this area.67

64 See Naït-​Liman (GC) (n 1) para 90. 65 ibid para 203. 66 ibid para 207. 67 ibid paras 209–​216.

26 Saccucci In this last respect, the Grand Chamber tersely acceded to the Government’s view (virtually ‘copied and pasted’ in the relevant paragraphs of the judgment) according to which the interpretation adopted by the fsc was consistent with the drafting history of Article 3 ldip and it rightly considered that the question of which elements form the constituent parts of a ‘case’ also had a ‘temporal dimension’, so that ‘when an element of the case was altered after the decisive set of circumstances ceased to exist, that change was not part of the ‘case’ and could thus no longer create a sufficient connection to warrant a forum of necessity’.68 The restriction on the applicant’s right of access to a court was therefore not disproportionate to the legitimate aims allegedly pursued.69 Unlike in immunity-​related cases, where the Court relied on the existence of a well-​established rule of general international law to find that the restriction on the right of access to a court should in principle be considered proportionate to the legitimate aim pursued,70 in the present case the Court relied on the absence of an established rule of general international law or of any other treaty provision on ucj or fnj to hold that the narrow interpretation of the requirement of the ‘sufficient connection’ with the forum State by the fsc could not be regarded as arbitrary or manifestly unreasonable and thus disproportionate to the legitimate aims pursued.71 In both scenarios, public international law ultimately plays a ‘restraining’ role on the right of access. When there is a rule of public international law requiring States to refrain from exercising their civil jurisdiction, then the restriction on the right of access is in principle considered justified from the point of view of Article 6 echr. When there is no rule of public international law imposing on the States the obligation to exercise their civil jurisdiction in relation to extraterritorial claims, then a wide margin of appreciation is allowed,

68 69 70

71

ibid paras 212 and 213. ibid para 216. In those cases, the legitimate aim of the restriction is of a purely ‘international character’, being that of ‘complying with international law to promote comity and good relations between States through the respect of another State’s sovereignty’, see, for instance, Fogarty v United Kingdom App no 37112/​97 (ECtHR, GC, 21 November 2001)  para 34; McElhinney v Ireland App no 31253/​96 (ECtHR, GC, 21 November 2001) para 35, Al-​Adsani v United Kingdom (n 6) para 54, Jones and others v United Kingdom App nos 34356/​06 and 40528/​06 (ECtHR, 14 January 2014) para 188. In this context, the legitimate aim of the restriction is of a purely ‘domestic character’, being that of ensuring ‘the proper administration of justice and maintaining the effectiveness of domestic judicial decisions’, see Naït-​Liman (GC) (n 1) para 122 ff.

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and the restriction is disproportionate only if the domestic courts’ decisions are arbitrary or manifestly unreasonable. However, the control of proportionality that the Court carries out under Article 6 echr appears then to be somehow broader where the restriction on the right of access is the result of the application by national courts of a rule of public international law on the immunity of States, agencies or international organizations, and narrower where the restriction is the result of the application by national courts of a domestic provision of private international law on jurisdiction (which is not imposed by public international law, as purportedly in the case of fnj). Indeed, in the first category of cases, the Court is able (and shows to be willing) to exercise a more intrusive control over the ‘justification’ of the domestic courts’ decisions from the point of view of the right of access to a court by making its own independent assessment of whether such decisions have correctly interpreted and applied the relevant rules of public international law on immunity relied on by the Contracting States to justify the restriction under Article 6 echr.72 However, in the second category of cases the Court is admittedly ready to recognize a wide margin of appreciation to domestic courts which can be overtaken only if their decisions appear manifestly arbitrary or unreasonable. In relation to such case, the role of international law is different. It is not the possible justification of the restriction, but the possible basis for narrowing the States’ margin of appreciation. Be as it may, one thing is crystal clear from the Grand Chamber’s judgment, namely that no consideration has been given in the context of the proportionality test to the issue of whether the applicant had in fact an alternative effective and accessible forum to bring his claims and to the dependent issue of whether the ‘very essence’ of his right of access to a court was impaired giving rise to a denial of justice.

72

For instance, in Al-​Adsani the Grand Chamber concluded that ‘the application by the English courts of the provisions of the 1978 Act to uphold Kuwait’s claim to immunity cannot be said to have amounted to an unjustified restriction on the applicant’s access to a court’, see Al-​Adsani (n 6) para 67. In Hirschhorn, the Court expressed doubts as to the question of whether the United States-​Peace Corps could rely on international immunity of foreign States as argued by the respondent Government to justify the restriction on the right of access, see Hirschhorn v Romania, App no 29294/​02 (ECtHR, 26 July 2007) para 45 and para 58. In such cases, the Court must satisfy that ‘the grant of immunity’ by the domestic courts actually ‘reflected generally recognized rules of public international law’, see, for instance, Jones (n 70) para 215.

28 Saccucci 6

The Impairment of the ‘Very Essence’ of the Right of Access to a Court and the Obligation of Contracting States to Prevent a Denial of Justice for Torture-​related Claims

As pointed out by the dissenting judges,73 the Grand Chamber lent no weight to the ‘alternative forum factor’ in assessing the proportionality of the restriction. Notwithstanding the issue was dealt with at length by the applicant and by the third-​party interveners,74 not one word is spent about it in the judgment. It is not then a coincidence that the Grand Chamber avoided to spell out in its conclusions that the contested restriction resulting from the narrowing interpretation of fnj did not impair the ‘very essence’ of the applicant’s right of access to a court.75 This is clearly the major shortcoming of the Grand Chamber’s judgment in Naït-​Liman.76 The availability of ‘reasonable alternative means of effective protection’ is usually considered by the ECtHR’s jurisprudence as a ‘material factor’ in determining whether immunity-​based restrictions on the right of access to a court are permissible under Article 6 echr.77 Although such restrictions are deemed to be in principle proportionate to the legitimate aim pursued, the Court did not avoid looking at whether the claimant could bring his action before a different forum in order to assess proportionality. The same approach 73 74

75

76 77

See the dissenting opinions of Judges Dedov and Serghides, appended to the Grand Chamber’s judgment. See, in particular, the submissions of Redress Trust and the omct in the procedure before the Grand Chamber, the full text of which is available at (last accessed 31 December 2019). On the contrary, the Chamber has drawn such a conclusion by stating that ‘the Swiss courts’ refusal to accept jurisdiction to examine the applicant’s civil action for damages as reparation for the damage caused by the alleged acts of torture (…) did not deprive the applicant’s right of access to a court of its very essence’, see Naït-​Liman (n 2) para 121. See De Marziis (n 1) 698; Pavoni (n 1) 892–​894. For instance, in Waite and Kennedy and Beer and Regan, the Court stated that ‘a material factor in determining whether granting esa immunity from German jurisdiction is permissible under the Convention is whether the applicants had available to them reasonable alternative means to protect effectively their rights under the Convention’; see Waite and Kennedy v Germany, App no 26083/​94 (ECtHR, GC, 18 February 1999) para 68; Beer and Regan v Germany App no 28934/​95 (ECtHR, GC, 18 February 1999) para 58. In McElhinney, the Court attached weight to the fact that ‘it would have been open to the applicant to bring an action in Northern Ireland against the United Kingdom Secretary of State for Defence’ in order to conclude that the margin of appreciation was not overstepped in the particular circumstances of the case, see McElhinney (n 70) para 39.

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has been followed also in cases where the domestic courts have declined their jurisdiction on the basis of specific treaty law provisions78 or on the basis of their domestic law.79 The questions to which the majority of the judges failed to answer in the present case are crucial ones, especially considering the overriding importance of the right at stake (ie the protection from torture). Did the applicant have ‘reasonable alternative means of protection’ in Tunisia or in Italy and, if not, did he suffer a denial of justice as a result of the fsc’s restrictive interpretation of fnj? In turn, these are the questions to which the dissenting judges gave a negative answer by holding that the applicant’s right of access was impaired in its very essence. The rationale of this omission by the majority seemingly lies in the preliminary finding that fnj –​where provided –​requires, as a cumulative condition, the existence of a sufficient connection with the forum State, a condition that 78 In Prince Hans-​Adam ii of Liechtenstein, for instance, the Court found that the decision of the German courts to decline their jurisdiction on the basis of the 1952 Convention on the settlement of matters arising out of the war and the occupation did not impair the applicant’s right of access to a court also because ‘[t]‌he genuine forum for the settlement of disputes in respect of these expropriation measures was, in the past, the courts of the former Czechoslovakia and, subsequently, the courts of the Czech or Slovak Republics’, see Prince Hans-​Adam ii of Liechtenstein v Germany App no 42527/​98 (ECtHR, GC, 12 July 2001) para 66. In this case, the Government had in fact argued that ‘only German jurisdiction was excluded, not the possibility of lodging claims in foreign courts’, in particular before Czech or Slovak courts (ibid para 42). See also Al-​Dulimi and Montana Management Inc v Switzerland App no 5809/​08 (ECtHR, GC, 21 June 2016) paras 150–​155, concerning the sanctions imposed by the Security Council of the United Nations against suspected terrorists, where the Court took into account the possibility for the applicants to apply to a ‘focal point’ for the deletion of their names from the Security Council lists and concluded that access to this procedure did not afford satisfactory protection and ‘could not therefore replace appropriate judicial scrutiny at the level of the respondent State or even partly compensate for the lack of such scrutiny’ (para 153). 79 In Arlewin, the ECtHR found that the decision of the Swedish courts to dismiss the applicant’s action for defamation on ground of lack of jurisdiction was disproportionate to the aim pursued taking also into account that ‘[i]‌nstituting defamation proceedings before the British courts could not be said to have been a reasonable and practicable alternative for the applicant in this particular case’ (emphasis added). According to the Court, by bringing his case before the Swedish courts, the applicant ‘tried the only viable option for an effective examination of his defamation claim’, see Arlewin (n 59) para 73; emphasis added. Similarly, in Urechean and Pavlicenco, the ECtHR held that ‘the lack of alternative means of redress [was] another issue to be considered by the Court’ in order to conclude that the manner in which the domestic rule on the immunity of the Head of State was applied could be regarded as a disproportionate interference with the right of access to a court, see Urechean and Pavlicenco v Moldova Apps nos 27756/​05 and 41219/​07 (ECtHR, 2 December 2014) paras 53–​55.

30 Saccucci the fsc had found not to be satisfied in this case. Therefore, the Grand Chamber  –​as the domestic courts  –​did not have to look at whether the second condition laid down in Article 3 ldip (ie proceedings abroad prove impossible or it cannot reasonably be required that they be brought) was met in this case. However, this rationale is not persuasive at all. The two cumulative conditions are not independent from one another. As pointed out in the preparatory work of the provision, the Swiss authorities are bound, under Article 3 ldip, to declare themselves competent even in cases presenting a ‘highly tenuous connection’ with the forum State ‘where it is impossible to bring an action or lodge an appeal abroad’. It is true that if no connection at all exists, there would be no need to establish whether an alternative forum exists; but it is also true that the unavailability of alternative means of protection is material for the assessment of the ‘connecting factor’ and may call for a more flexible approach in this respect at least from the point of view of the proportionality test under Article 6 echr. If the Grand Chamber had duly taken into account this element, its conclusion that the fsc’s decision relating to the ‘temporal dimension’ of the connecting factor was not arbitrary or manifestly unreasonable might have been different, as pointed out by the dissenting judges.80 This holds particularly true if one considers the way in which the relevant international and national law and practice regarding ucj and fnj was appreciated. While it may be accepted in general that the sufficient connection with the ‘cause’ should be found to exist ‘at the material time of the events’ giving rise to the proceedings, Article 6 echr may be read as imposing an obligation ‘to take into account’ the ‘alternative forum factor’ in determining whether fnj should be granted in the specific circumstances of each case. This would not amount to imposing on the Contracting States a certain notion of fnj or much less a disguised form of ucj, but it would simply allow the ECtHR to find an element of arbitrariness in the decision of a domestic court which –​as the fsc in the case of Naït-​Liman81 –​failed to assess the existence of a sufficient connection also in light of the (non)availability of alternative means of protection,

80 81

See in particular the dissenting opinion of Judge Serghides, according to whom the fsc’s interpretation of Article 3 ldip was so restrictive as to render it meaningless and was thus to be regarded as manifestly unreasonable. As pointed out by the Grand Chamber, the fsc has explicitly avoided to rule on the question of whether the second condition for the application of Article 3 ldip –​that legal proceedings in another country were impossible or could not reasonably be required –​ had been met, see Naït-​Liman (GC) (n 1) para 102.

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thereby ensuring a more effective protection against a possible denial of justice in torture-​related cases. The availability of an alternative forum should be given weight on a case-​ by-​case basis having regard to all information available concerning not only the existence in abstracto of another State which would be entitled to assert its civil jurisdiction on the claim, but also the effectiveness in concreto of the legal protection which that State would be willing or able to provide and the practical obstacles which the applicant may face in bringing his action before the courts of that State. As pointed out in Arlewin, the alternative must be ‘reasonable’ and ‘practicable’.82 In the case of Naït-​Liman, there is little doubt that Tunisia would not amount to a reasonable and practicable alternative means of effective protection. Indeed, as pointed out by the third-​party interveners,83 ample authoritative reports documented that acts of torture were of a systematic and widespread nature in Tunisia, particularly for those detained by the Ministry of Interior, including unacknowledged and/​or secret detention in the basement of the Ministry of Interior itself in Tunis. A  series of individual decisions of the UN Committee against Torture illustrate the lack of independent and effective remedies and the total absence of reparation for victims of torture in accordance with Article 14 of the cat.84 This has also been recognized by the UN Human Rights Committee and by the Committee against Torture in their concluding observations on the examination of Tunisia’s periodic reports.85 Moreover, it would have been extremely hard, if not impossible, for the applicant to avail himself of the Tunisian forum while being a refugee in Switzerland and before being granted Swiss nationality. Had he filed his compensation claim before the Tunisian courts and had he returned to Tunisia even if for the very limited purpose of filing such claim, his refugee status could be withdrawn in Switzerland according to Article 1C (1) of the Geneva Convention 82 See Arlewin (n 59) para 73. 83 The question was dealt with at length in the third-​party submissions of Citizens’ Watch, summarized at Naït-​Liman (GC) (n 1) paras 170–​172. 84 See, for instance, Committee against Torture, Rached Jaïdane v Tunisia, communication no 654/​2015, decision of 11 August 2017, notably para 7.12; Taoufik Elaïba v Tunisia, communication no 551/​2013, decision of 9 August 2016, notably para 7.7; Saadia Ali v Tunisia, communication no 291/​2006, decision of 21 November 2008, notably para 15.8. 85 See Human Rights Committee, ‘Concluding observations on the fifth periodic report of Tunisia’, UN Doc CCPR/​C/​TUN/​CO/​5, 23 April 2008, para 11; Committee against Torture, ‘Concluding observations on the third periodic report of Tunisia’, UN Doc CAT/​C/​TUN/​ CO/​3, 10 June 2016, paras 15–​20.

32 Saccucci because he ‘voluntarily re-​availed himself of the protection of the country of nationality’ which he left owing to fear of persecution.86 Against this background, one could certainly expect from the ECtHR a more careful consideration of the possible implications of Article 16 of the Geneva Convention according to which ‘a refugee shall have free access to the courts of law on the territory of all Contracting States’ and shall enjoy ‘the same treatment as a national in matters pertaining to access to the Courts’. In order to ensure a truly equal treatment, the host State should consider that the refugee cannot in principle avail himself or herself of the protection (including the judicial protection) of the State of nationality, which therefore cannot be regarded as a ‘reasonable’ and ‘practicable’ alternative forum. Finally, it should also be noted that no different conclusion as to the availability in Tunisia of effective means of protection is warranted by the establishment of the Truth and Dignity Commission in 2013. The applicant had in fact submitted a complaint to the tdc in 2016 and had received a simple acknowledgment of receipt in February 2016, without any further communication from the tdc since then.87 In addition, as pointed out by the Grand Chamber, the tdc had been set up after the relevant judgment of the fsc so that the possibility of submitting a complaint to it was ‘not relevant for the examination of the present case’.88 In respect of Tunisia, therefore, it is safe to conclude that, as a result of the fsc’s restrictive interpretation of fnj, the applicant was denied access to ­justice. 86

According to the unchr, this cessation clause refers to a refugee possessing a nationality who remains outside the country of his nationality (see Handbook on procedure and criteria for determining the refugee status under the 1951 Convention and the 1967 Protocol relating to the status of refugees, HCR/​IP/​4/​Eng/​REV.1, available at (last accessed 31 December 2019) 1992, paras 118–​125). While the practice relating to Article 1C (1) of the Geneva Convention mainly refers to acquisition of passport or travelling documents from the State of nationality, it cannot be excluded that a civil action brought before the courts of that State in order to complain about the very acts of torture which gave rise to the fear of persecution may be regarded as a form of ‘voluntary re-​availment of protection’ of that State. In this respect, one may question whether such an action would be truly ‘voluntary’ if no alternative forum exists for the refugee to bring his claim. For instance, the unchr pointed out that a refugee applying for a divorce in his home country because no other divorce may have the necessary international recognition cannot be considered to have voluntarily re-​availed himself of protection, see ibid para 120. 87 See Naït-​Liman (GC) (n 1) para 36. 88 ibid para 101.

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However, the question of the availability of ‘reasonable alternative means of effective protection’ may appear more controversial with regard to the possibility for the applicant to bring his claims before the Italian courts. As noted above, the Grand Chamber has preliminarily pointed out that it would not rule on this point because ‘in the absence of more ample information on this subject, the outcome of such proceedings, including the question of the jurisdiction of the Italian courts, remains speculative’. It is reasonable to assume however that the applicant would be, in principle, entitled to bring proceedings in Italy against the Tunisian authorities, in respect of the torture sustained, and/​or against the Italian authorities, in respect of his arrest and surrender to the Tunisian authorities on 22 April 1992.89 Different titles of jurisdiction could be relied on to this purpose. The Italian courts would certainly have jurisdiction to entertain the applicant’s compensation claims insofar as they concern the alleged wrongful conduct of the Italian authorities on the basis of both the general forum of the defendant90 and the forum of the locus commissi delicti.91 But they could also extend their civil jurisdiction to the wrongful conduct of the Tunisian authorities on the basis of the fact that this conduct and its detrimental consequences initiated in Italy when the applicant was handed over to the Tunisian officials and then forcibly removed to Tunisia where he was arbitrarily detained and tortured.92 89 90 91

92

For a similar conclusion see Pavoni (n 1) 894; De Marziis (n 1) 699. See Article 3(1) of the Law no 218 of 31 May 1995, Article 2(1) of the 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, and Article 4(1) of Brussels I bis Regulation (n 61). Pursuant to Article 5(3) of the 1968 Brussels Convention, the jurisdiction in matters relating to tort, delict or quasi-​delict lies with the courts of the place ‘where the harmful event occurred’. Similarly, Brussels I bis Regulation (n 61), Article 7(2) refers to ‘the place where the harmful event occurred or may occur’. In this respect, it should be pointed out that, according to the rapporteur of the idi on universal civil jurisdiction, A Bucher, ‘it is evident that the obligation to put in place a compensation system’ in accordance with Article 14 of the cat lies not only ‘on the State responsible for acts of torture’ but also ‘on the State in which such acts were prepared’, see background report, para 65. As pointed out by the jurisprudence of the Court of Justice of the European Union (ecj) in Case C-​189/​08, Zuid-​Chemie BV [2009] ECLI:EU:C:2009:475, para 23, it is ‘settled case-​ law that, where the place in which the event which may give rise to liability in tort, delict or quasi-​delict occurs and the place where that event results in damage are not identical, the expression “place where the harmful event occurred” in Article 5(3) of the Brussels Convention must be understood as being intended to cover both the place where the damage occurred and the place of the event giving rise to it, so that the defendant may be sued, at the option of the claimant, in the courts for either of those places (…)’. For Pavoni (n 1) 894, the jurisdiction of Italian courts over the applicant’s claim against Tunisia could be based on the fact that a causally decisive part of the wrongful conduct (ie the applicant’s deportation by Tunisian officials) had occurred in Italy.

34 Saccucci Moreover, the jurisdiction against Tunisia could also be based on the special title of jurisdiction in case of a plurality of defendants in relation to closely connected claims.93 The Grand Chamber could have elaborated more on this aspect even in the absence of information from the parties. And it may well have concluded that the applicant had reasonable and practicable effective means of protection before the Italian courts –​also in light of the progressive attitude of the Italian jurisprudence on the issue of immunity of foreign States in relation to violations of peremptory norms of general international law such as the prohibition of torture94 –​and that therefore the narrow interpretation of fnj by the Swiss courts did not result into a denial of justice in the specific circumstances of the case. Regrettably, however, the Grand Chamber left this question entirely out of the scope of its review under Article 6 echr. The criticisms expressed by the dissenting judges in this respect are therefore more than justified, as the Grand Chamber failed to satisfy itself that ‘the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired’.95 7

Concluding Remarks: the ECtHR as a ‘forum non conveniens’ for Addressing the Issue of ucj under Article 6 echr and the Option of the Procedural Obligations under Article 3 echr

As mentioned in the introduction, the Grand Chamber’s ruling in Naït-​Liman shows that the Court is not ready to undertake any progressive approach in the field of extending domestic civil jurisdiction through the prism of the right of access to a court under Article 6 echr. 93

94 95

Pursuant to Article 6(1) of the Brussels Convention, referred to by Article 3(2) of the Law no 218 of 31 May 1995, a person domiciled in a Contracting State may also be sued ‘where he is one of a number of defendants, in the courts for the place where any one of them is domiciled’. Similarly, pursuant to Article 8 (1) of Brussels I bis Regulation (n 61), a person domiciled in a Member State may also be sued ‘where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings’. The Grand Chamber acknowledged the existence of such a jurisprudence and of the following judgment of the icj finding a breach of customary international rules on immunities (n 50). See, for instance, Al-​Adsani v United Kingdom (n 6)  para 53; Waite and Kennedy v Germany (n 77) para 59; Fogarty v United Kingdom (n 70) para 33; Al-​Dulimi and Montana Management Inc v Switzerland (n 78) para 129.

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The purview of its assessment in the framework of the proportionality test remains very limited (the non-​arbitrariness or manifest unreasonableness of the domestic courts’ decision) in the absence of any well-​established rule of international law concerning ucj and/​or fnj. Subject to the criticisms expressed above with regard to the Grand Chamber’s analysis of the relevant international law and practice and with regard to the manner in which the assessment of proportionality was carried out in this case, it may be honestly difficult to expect more from the echr as a minimum common standard of protection. For this reason, it is suggested that the ECtHR is, generally speaking, an unfitted forum for dealing in a progressive manner with issues relating to the scope of the civil jurisdiction of the Contracting States under Article 6 echr.96 Moreover, even if the Grand Chamber had found a violation of Article 6 echr in the specific circumstances of the case (for instance, because the very essence of the applicant’s right was impaired or because it was manifestly unreasonable for the domestic courts to refuse the application of fnj), this conclusion may not have had the expected general impact on the development of national and international rules on ucj and fnj for victims of torture. On the contrary, it may have weakened the development of the practice of the Contracting States by fostering a conservative approach of domestic courts based on a restrictive reading of the ECtHR’s case-​law on Article 6 echr. Given the increasing weight that domestic courts (and especially supreme and constitutional courts) are giving to the Court’s case-​law, it is not unlikely that a ‘circumstantial finding of violation’ in this case could adversely affect the improvement of domestic practice in the field of ucj and become a sort of alibi for States to deny jurisdiction or to adopt a particularly restrictive interpretation of fnj or a particularly extensive interpretation of the forum non conveniens doctrine, where provided. The Grand Chamber’s ruling may also ‘contaminate’ the interpretation of Article 14 of the cat, as it cannot be excluded that –​in a spirit of harmonization –​the Committee against Torture may itself rely on this ruling as an authority in support of a narrow determination of the territorial scope of application of the torture victims’ right to compensation.97 Therefore, the real dommage in this case –​to use the famous incipit of the dissenting opinion of Judge Ferrari Bravo to the ECtHR’s judgment in Al-​Adsani –​ may 96

97

As pointed out by Ryngaert (n 3) 805, if the Court were to find a Contracting State in violation of Article 6 echr for espousing a conservative reading of jurisdiction based on forum of necessity, where no consensus on the appropriateness or desirability of such a jurisdiction exists, ‘it would arguably legislate from the bench and overstep its judicial role’. A similar opinion is expressed by De Marziis (n 1) 701.

36 Saccucci well be the very fact that the ECtHR has been prematurely called to rule on it. Against this background, a non liquet on the issue of ucj (as advocated by the applicant itself in the proceedings before the Grand Chamber98) would probably have the benefit to avoid any interference with the evolving practice on the extraterritorial enforcement of the right to compensation for victims of torture. If any room is left within the echr for a broader protection of this right, it lies in the procedural obligations under Article 3 echr. The ECtHR’s jurisprudence may in fact be further developed also in relation to the notion of ‘reasonable alternative means of effective protection’ for the enforcement of the victims’ right to compensation in torture-​related cases. In this context, the absolute nature of the prohibition of torture and the erga omnes obligations arising out of it could be directly taken into account in pondering the conflicting interests, as advocated by some commentators.99 As pointed out by one of the third-​party interveners,100 although the positive procedural obligation under Article 3 echr in respect of acts of torture was generally understood as requiring criminal investigations, nothing precluded other types of judicial proceedings  –​including, for example, civil or disciplinary proceedings against those individuals who were allegedly implicated in torture –​from being taken into account.101 While any such development would not lead to a de facto recognition of ucj, it may secure some form of relief to the victim of torture who is able to prove that bringing proceedings before a different forum would be impossible or could not reasonably be required.

Bibliography

Bonafè BI, ‘La Corte europea dei diritti dell’uomo e la giurisdizione universale in materia civile’ (2016) 99 RDI 1100. 98

According to the applicant, ‘the present case did not necessarily require the Court to rule on the refusal or acceptance of universal civil jurisdiction’, see Naït-​Liman (GC) (n 1) para 134. 99 See, in particular, Rietiker (n 1)  7–​8, according to whom the Grand Chamber failed to consider the absolute nature of the prohibition of torture as a norm of jus cogens in the balancing test under Article 6 echr because it was not confronted with an explicit torture complaint under Article 3 echr. 100 See the submissions of Citizens’ Watch, summarized at Naït-​Liman (GC) (n 1) para 171. 1 01 Further improvements regarding the extraterritorial reach of procedural obligations under the echr in relation to serious human rights violations perpetrated abroad may come from the forthcoming ruling of the Grand Chamber in the case Hanan v Germany App no 4871/​16.

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De Marziis C, ‘Diritto di accesso a un giudice e giurisdizione civile universale dinanzi alla Corte europea dei diritti umani’ (2018) 12 DUDI 693. Hall CK, ‘The Duty of States Parties to the Convention against Torture to Provide Procedures Permitting Victims to Recover Reparations for Torture Committed Abroad’ (2007) 18 EJIL 921. Heri C, ‘The Grand Chamber, Universal Civil Jurisdiction for Torture and Naït-​Liman v Switzerland’, Strasbourg Observers, 28 March 2018, available at . Loudon C, ‘Right of Access to a Court in Civil Claims for Torture Committed Abroad: The European Court Grand Chamber Decision in Naït-​Liman’, EJILTalk!, 3 April 2018, available at . Mora PD, ‘The Legality of Civil Jurisdiction over Torture under the Universal Principle’ (2009) 52 German Ybk Intl L 367. Mora PD, ‘Universal Civil Jurisdiction and Forum Necessitatis: The Confusion of Public and Private International Law in Naït-​Liman v. Switzerland’ (2018) 65 Netherlands Intl L Rev 155. Nkenkeu-​kek S, ‘L’arrêt Naït-​Liman c.  Suisse ou l’occasion manquée par la Cour européenne des droits de l’homme de renforcer l’effectivité du droit des victimes d’obtenir réparation de violations graves des droits de l’homme’ (2018) 29 Rev trim dr homme 985. Nowak M and McArthur E, The United Nations Convention against Torture: A Commentary (1st edn, oup 2008). Orakhelashvili A, ‘State Immunity and Hierarchy of Norms: Why the House of Lords Got It Wrong’ (2007) 18 EJIL 955. Parlett K, ‘Universal Civil Jurisdiction for Torture’ (2007) 4 Eur Human Rights L Rev 385. Pavoni R, ‘Giurisdizione civile universale per atti di tortura e diritto di accesso al giudice: la sentenza della Grande Camera della Corte europea dei diritti umani nel caso Naït-​Liman’ (2018) 101 RDI 892. Rietiker D, ‘The case of Naït-​Liman v Switzerland Before the European Court of Human Rights: Where Are the Limits of the Global Fight Against Torture?’, Harvard Intl LJ, 15 March 2019, available at . Rossolillo G, ‘Forum necessitatis e flessibilità dei criteri di giurisdizione nel diritto internazionale private nazionale e dell’Unione europea’ (2010) 2 Cuad der transnl 403. Ryngaert C, ‘From Universal Civil Jurisdiction to Forum of Necessity: Reflections on the judgment of the European Court of Human Rights in Naït-​Liman’ (2017) 100 RDI 782. Wallach D, ‘The Irrationality of Universal Civil Jurisdiction’ (2015) 46 Georgetown J Intl L 803.

chapter 2

The Role of the European Court of Human Rights in the Development of Rules on Universal Civil Jurisdiction

Naït-​Liman v Switzerland in the Transition between the Chamber and the Grand Chamber Serena Forlati 1

Introduction

The European Court of Human Rights (ECtHR) Grand Chamber’s judgment in the case of Naït-​Liman v Switzerland1 confirmed the finding already made by the Court’s Second Chamber, that Switzerland did not breach the European Convention on Human Rights in the instant case.2 The facts underlying the application are known:  the applicant, originally a national of Tunisia, was granted refugee status in Switzerland and eventually became a Swiss national. Mr Naït-​Liman contended that Swiss judicial authorities infringed his right of access to a court under Article 6 echr by refusing to exercise

1 App no 41357/​07 (ECtHR, GC, 15 March 2018). On the judgment see C De Marziis, ‘Diritto di accesso a un giudice e giurisdizione civile universale dinanzi alla Corte europea dei diritti umani’ (2018) 12 DUDI 693; PD Mora, ‘Universal Civil Jurisdiction and Forum Necessitatis: The Confusion of  Public and  Private International Law in  Naït-​Liman v.  Switzerland’ (2018) 65 Netherlands Intl L Rev 155; S Nkenkeu-​kek, ‘L’arrêt Naït-​Liman c. Suisse ou l’occasion manquée par la Cour européenne des droits de l’homme de renforcer l’effectivité du droit des victimes d’obtenir réparation de violations graves des droits de l’homme’ (2018) 29 Rev trim dr homme 985; R Pavoni, ‘Giurisdizione civile universale per atti di tortura e diritto di accesso al giudice: la sentenza della grande camera della Corte europea dei diritti umani nel caso Naït-​Liman’ (2018) 101 RDI 888; D Rietiker, ‘The case of Näit-​Liman v. Switzerland Before the European Court of Human Rights:  Where Are the Limits of the Global Fight Against Torture?’, Harvard Intl LJ, 15 March 2019, available at (last accessed 31 December 2019). Cf also D Hovell, ‘The Authority of Universal Jurisdiction’ (2018) 29 EJIL 427–​56, 450. 2 Affaire Naït-​Liman c Suisse (ECtHR, 21 June 2016). On the Chamber judgment see BI Bonafè, ‘La Corte europea dei diritti dell’uomo e la giurisdizione universale in materia civile’ (2016) 99 RDI 1100; C Ryngaert, ‘From Universal Civil Jurisdiction to Forum of Necessity: Reflections on the Judgment of the European Court of Human Rights in Naït-​Liman’ (2017) 100 RDI 782.

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004408579_004

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jurisdiction over the civil claim he had submitted against a high-​ranking Tunisian State official and the Tunisian State as such. In the domestic proceedings, Mr Naït-​Liman sought reparation for the acts of torture the former Minister, Mr AK, ordered against him while he was in detention. Swiss Courts declined to exercise jurisdiction, ‘faute de lien de rattachement suffisant entre la cause et les faits d’une part, et la Suisse d’autre part’.3 The Second Chamber considered this refusal as compatible with Article 6, despite the fact that Swiss law does provide for forum necessitatis jurisdiction,4 a residual jurisdictional ground establishing the competence of the courts of the place with which the case presents a sufficient link whenever no other ground of jurisdiction exists under Swiss law and it would be unreasonable for the applicant to bring the case abroad.5 The ECtHR’s Chamber deemed their interpretation of this provision not to be arbitrary, and posited that no obligation for States Parties to exercise universal civil jurisdiction exists under the echr, nor does it apply under either the UN Convention against Torture (cat) or customary international law.6 That the Grand Chamber largely upheld the Chamber’s findings did not come as a surprise, given the difficulty of identifying a ‘European consensus’ on the existence of an obligation to exercise universal civil jurisdiction for international crimes, at a time when even strenuous supporters of this principle acknowledge that it is not widely reflected in State practice.7 This is especially true as regards acceptance of the principle in its ‘pure’ form, namely the exercise of civil jurisdiction by the courts of a state over conduct or events […] that all states have an interest in preventing and punishing even though the parties involved are not affiliated in any way to the forum state, nor do the events take place on the territory of the forum state, and nor do the events implicate the interests of the forum state.8 3 Naït-​Liman (n 2) para 18: ‘as there is no sufficient link between the case and the alleged facts, on the one hand, and Switzerland, on the other’ (translation by the author; the judgment is available only in French). 4 On the notion of universal civil jurisdiction and the treatment of its relationship to the forum necessitatis in the Naït-​Liman case see Bonafè (n 2) 1106 ff. 5 Article 3 of the Swiss Law on Private International Law, of 18 December 1987; see Naït-​Liman (GC) (n 1) para 24. 6 ibid paras 116, 120. 7 A Bucher, ‘La compétence universelle civile’ (2015) 372 Recueil des Cours de l’Académie de Droit International 21, 103 concedes that ‘la compétence universelle en matière de crimes contre l’humanité ne trouve pas un accueil aussi permissif parmi les Etats et l’opinio iuris’. 8 AG Jain, ‘Universal Civil Jurisdiction in International Law’ (2015) 55 Indian J Intl L 209, 211.

40 Forlati Even formulations endorsing ‘attenuated’ forms of universal civil jurisdiction, such as the one included in the Institut de droit international’s resolution on the topic,9 set out State obligations in this regard only in hortatory terms. It is also noteworthy that the applicant’s lawyers, while relying on the Institut’s resolution in their pleadings, stressed that the principle of universal civil jurisdiction as such was not at stake in the instant case; rather, they argued that Switzerland should be identified as the country that would provide the ‘appropriate forum’ for Mr Naït-​Liman’s claim.10 As this defence strategy in itself makes clear, it could hardly be expected that the referral procedure would lead the Grand Chamber to construe an obligation to exercise universal civil jurisdiction under Article 6 echr. Whether States are entitled to exercise universal civil jurisdiction is a more open question, on which the Grand Chamber gives an affirmative answer;11 however, the ECtHR is usually reluctant to interfere with domestic courts’ interpretation of their own legislation. It is therefore also not surprising, although possibly disappointing, that the Grand Chamber did not disavow the Federal Court’s findings in this regard and impose a broad reading of Article 3 of the Swiss Federal Statute on Private International Law, absent an international obligation to do so. Nonetheless, the Grand Chamber’s judgment did not simply restate the main findings of the Chamber on the principle of universal civil jurisdiction. Firstly, and as is typical of referral proceedings, it took into specific account some issues that had been raised by the Joint Dissenting Opinion appended to the Chamber’s judgment by Judges Karakaş, Vučinić and Kūris, as regards the possibility for Switzerland to exercise criminal jurisdiction over Mr AK. The dissenting Judges highlighted that the five days between Mr Naït-​Liman’s complaint and the assessment by the Public Prosecutor that Mr AK had left 9

Institut de Droit international, Tallinn Session, ‘Universal Civil Jurisdiction with regard to Reparation for International Crimes’ (2015) Annuaire 265, Article 2, according to which States should exercise jurisdiction over claims for reparation by victims of international crimes only if a number of conditions are met (notably, if no other State with stronger connection to the case exists or if such a State would not provide for an effective remedy). 10 See Naït-​Liman (GC) (n 1), especially para 141, and more clearly the pleadings at the hearing of 14 June 2017. The webcast is available at (last accessed 31 December 2019). 11 See further below, Section 3. Cf L Roorda, C Ryngaert, ‘Public International Law Constraints on the Exercise of Adjudicatory Jurisdiction in Civil Matters’, above in this volume. See also DF Donovan and A  Roberts, ‘The Emerging Recognition of Universal Civil Jurisdiction’ (2006) 100 AJIL 142, 143; Rietiker (n 1). For a different view, see however Jain (n 8) 237.

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Switzerland should be scrutinized carefully,12 suggesting that the inaction of the Swiss authorities might imply a violation of the echr. Indeed, a systemic reading of the echr13 in light of the commitments set forth by the United Nations Convention against Torture (uncat)14 might imply that that the lack of prompt action by the Swiss authorities actually deprived Mr Naït-​Liman of a venue that could provide him with access to a Court as regards his civil claim. Had the suspect been apprehended in Switzerland, the latter State would arguably be under an obligation to exercise criminal jurisdiction against him under the echr;15 in turn, this would have allowed Mr Naït-​Liman to bring a civil suit in the framework of a criminal procedure against Mr AK,16 without any 12

Dissenting Opinion, para 12: ‘Le requérant a déposé le 14 février 2001, auprès du procureur général du canton de Genève, une plainte pénale contre son tortionnaire présumé. Or ce n’est que le 19 février 2001 que le procureur général s’est prononcé sur cette plainte, en refusant de la prendre en compte, au motif que la personne mise en cause par le requérant avait alors quitté le territoire suisse. Le Gouvernement n’a fourni aucune information concernant la raison et la date de ce départ. Étant donné que la personne suspectée d’avoir commis les actes de torture se trouvait hospitalisée en Suisse le jour du dépôt de plainte, il convient de porter une attention particulière sur les cinq jours d’inaction des autorités’. See also para 14, highlighting that functional immunity from criminal jurisdiction could not be invoked in cases of torture. 13 Cf Naït-​Liman (n 2) para 105. Cf Demir and Baykara v Turkey App no 34503/​04 (ECtHR,GC, 12 November 2008) para 76. 14 Article 5 (2) cat binds States Parties to establish jurisdiction ‘in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him’. Moreover, according to Article 7(1), the State where an alleged perpetrator is found ‘shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution’. 15 According to the case law of the ECtHR concerning positive obligations, if entitlements and obligations relating to the exercise of criminal jurisdiction exist in this regard under multilateral instruments showing the existence of a European consensus, they also apply under the echr:  see Jorgic v Germany App no 74613/​01 (ECtHR, 12 July 2007)  para 70 where the Court considered that the German authorities ‘had reasonable grounds for establishing their jurisdiction to try the applicant on charges of genocide’, on the basis of a contextual interpretation of Article vi of the Genocide Convention as confirmed by implementing practice, since ‘the purpose of the Genocide Convention, as expressed notably in that Article, did not exclude jurisdiction for the punishment of genocide by States whose laws establish extraterritoriality in this respect must be considered as reasonable (and indeed convincing)’. Moreover, the Court ruled out the existence of an obligation to exercise universal jurisdiction as regards human trafficking by reading Article 4 echr in light of the untoc Trafficking Protocol: see J and Others v Austria App no 58216/​ 12 (ECtHR, 17 January 2016) para 114. By the same token, should an instrument relevant to the Convention’s interpretation set out an obligation to exercise universal criminal (or, indeed, civil) jurisdiction, such obligation would seem to apply also under the echr. 16 The Chamber itself acknowledges this element when recalling that Mr Naït-​Liman ‘s’est effectivement constitué partie civile par rapport à sa plainte pénale du 14 février 2001; par

42 Forlati reference to the principle of universal civil jurisdiction or to the forum necessitatis as such. While not specifically mentioning the Dissenting Opinion, the Grand Chamber judgment clarified some issues of fact showing that Switzerland had not been negligent in the exercise of its criminal jurisdiction –​and had thus not arbitrarily deprived Mr Naït-​Liman of an opportunity to seek redress against Mr AK in the framework of criminal proceedings, as is provided for by most European domestic legal systems.17 While this is certainly a welcome step, another aspect of the Grand Chamber judgment will be in focus here: notably, the more adequate consideration it gave, as compared to the Chamber judgment, to the role that international courts and tribunals have in favouring, but at times also in chilling, the development of new international legal rules. In this perspective, specifically the ECtHR Chamber’s assessment of the legality of the aim pursued by the Swiss authorities when refusing to rely on forum necessitatis deserved to be reappraised out of consideration for this component of the international judicial function. It may be useful to recall briefly how the role of international judicial bodies as regards the development of international law is currently seen, before reflecting on the Grand Chamber’s findings in this regard and on whether they are in line with the role of the ECtHR as an International Human Rights Court. 2

The Systemic Role of International Judicial Institutions

The role of international courts in the interpretation, elucidation and development of international law is well known: while international judgments bind only the parties to the decided case18 –​and other judicial pronouncements such as advisory opinions are not formally binding at all –​judicial interpretation of international legal rules has a significant impact on the development of the international legal system. Such influence (which some characterise, in terms of either criticism or praise, as ‘judicial law-​ making’) is only in part grounded on the idea that judgments are ‘subsidiary means of interpretation’ of international custom under Article 38(1)(d) icj

17 18

contre, la plainte fut classée après qu’AK eut quitté la Suisse’: Naït-​Liman (n 2) para 119 (see also para 14). Naït-​Liman (GC) (n 1) para 100. Article 59 icj Statute; Article 46(1) echr.

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Statute.19 As noted by the Special Rapporteur on the identification of international custom, Michael Wood, The decisions of international courts and tribunals cannot be said to be conclusive for the identification of rules of customary international law. Their weight varies depending on the quality of the reasoning, the composition of the court or tribunal, and the size of the majority by which they were adopted. In addition, it needs to be borne in mind that customary international law may have developed since the date of the particular decision. Nevertheless, judicial pronouncements, especially of the International Court of Justice and of specialist tribunals, […] are often seen as authoritative. […] Examples of reliance upon judicial decisions for the identification of rules of customary international law are legion.20 The structure of the international society greatly enhances this component of the judicial function, since the impartial assessment of the existence and content of legal rules has particular importance in a legal order still lacking a formal ‘legislative body’ with general competence. International judgments, whose systemic effects are grounded on the binding character of the rules they apply, confirm the existence of such rules and elucidate their content;21 nonetheless, this clarification effort often implies a creative element, which is crucial for the stabilisation and development of legal regimes.22 Specifically, the drafters of the Statute of the Permanent Court of International Justice (pcij) considered that the new Court would contribute to the development of international law through its case law.23 This function was later taken up by the icj, whose status as the principal judicial organ of the United Nations actually emphasises it. An apt example in this regard is the consideration given

19

ilc, ‘Third report on identification of customary international law by Michael Wood, Special Rapporteur’ (27 March 2016) UN Doc A/​CN.4/​682, 43–​44, paras 60–​61 (footnotes omitted). 20 ibid. 21 L Condorelli, ‘L’autorité des décisions des juridictions internationales permanentes’, in SFDI, La juridiction internationale permanente –​Colloque de Lyon (Pedone, 1987) 277, 307. 22 A von Bogdandy, I  Ventzke, In Whose Name? A  Public Law Theory of International Adjudication (oup 2012) 15. Criticisms such as the one of AM Weisburd, Failings of the International Court of Justice (oup 2016) take the influence of icj case law as a premise for analysis, rather than denying it. 23 See pcij, Advisory Committee of Jurists, verbatim record of the first meeting, Annex No 2, Procés Verbaux of the Meetings of the Committee (van Langenhuysen Brothers 1920) 8. Cf R Kolb, The International Court of Justice (Hart Publishing 2014) 1139.

44 Forlati to the Jurisdictional Immunities case by the ECtHR: in Jones the Grand Chamber maintained that ‘the recent judgment of the International Court of Justice in Germany v Italy […] must be considered by this Court as authoritative as regards the content of customary international law’ with reference to the absence of a ‘jus cogens exception to State immunity’.24 In reaching a similar conclusion as regards immunities of State officials, the Grand Chamber also emphasised that ‘the applicants have not pointed to any decision of the icj or international arbitral tribunals which has stated this principle’.25 The icj’s view on the matter was set out in the Nuclear Weapons advisory opinion: rather than acknowledging any law-​making role, the Court considers that ‘its task is to engage in its normal judicial function of ascertaining the existence or otherwise of legal principles and rules applicable’ to the case; it ‘states the existing law and does not legislate. This is so even if, in stating and applying the law, the Court necessarily has to specify its scope and sometimes note its general trend’.26 While the position of the icj is somehow special, other international courts and tribunals share the same function of ‘noting the general trend’ in the evolution of international law, thereby fostering the development of specific treaty regimes and/​or of the international legal order as such. The relevance of this component of the international judicial function varies depending on several elements, including the content of the applicable legal rules,27 the permanent and multilateral nature of the relevant jurisdiction and the ‘acceptability’ of specific decisions to the group of States that are part of a given judicial system.28 There is little doubt, however, that it plays a prominent role in the 24 25 26 27

28

Jones v The United Kingdom Apps nos  34356/​06  and  40528/​06 (ECtHR, 14 January 2014) para 189. ibid para 208. Legality of the Use of Nuclear Weapons (Advisory Opinion) [1996] icj Rep 236, para 18. Thus, for instance, according to Judge Wolfrum ‘international courts and tribunals in respect of maritime delimitation exercise a “law-​making function”, a function which is anticipated and legitimized by articles 74 and 83 of the [unclos]’, see itlos, Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/​Myanmar) (14 March 2012, Decl Wolfrum) itlos Reports 2012 136,137. Beyond this specific context, the use of vague or flexible notions also leaves the interpreter broader discretion in the interpretation of the relevant rules: see J Salmon, ‘Le concept de raisonnable en droit international public’, in Mélanges offerts à Paul Reuter –​Le droit international: unité et diversité (Pedone, 1981) 447, 450; R Sapienza, ‘Sul margine d’apprezzamento statale nel sistema della Convenzione europea dei diritti dell’uomo’ (1991) 74 rdi 571. G Gaja, ‘The Protection of General Interests in the International Community –​General Course on International Law’ (2011) 364 Recueil des Cours de l’Académie de Droit International 9, 44.

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context of the echr, where the case law of the ECtHR is crucial to the development of the Convention system. In an early case, the ECtHR opined that its judgments in fact serve not only to decide those cases brought before the Court but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance by the States of the engagements undertaken by them as Contracting Parties.29 This stance has entailed practical consequences in later case law –​for instance in cases where the ECtHR decided to pursue the examination of a case notwithstanding the death of the applicant and the absence of close relatives,30 or although the respondent State had acknowledged a breach and issued an unilateral engagement to pay compensation.31 It also underlies developments such as those relating to the pilot judgment procedure, with the ECtHR indicating general measures to ‘assist States’ in addressing systemic failures to respect the Convention,32 and more recently even deciding (with an unprecedented move from the procedural point of view) that all pending and future cases connected to a pilot judgment that had not been executed would be struck out of the list and ‘transferred’ to the Committee of Ministers.33 This systemic role does not concern only the addressees of specific judgments:  if, on the one hand, the Strasbourg Court requires States parties to take into account judgments against other States parties in order to modify their domestic legal systems accordingly,34 on the other hand States Parties accept this approach, with legislative or judicial authorities often deciding that ECtHR case law should be followed at domestic level irrespective of whether it formally binds the State. Thus, a survey commissioned by the Parliamentary Assembly confirms that Contracting States of the echr 29 30

31 32 33 34

Ireland v United Kingdom App no 5310/​71 (ECtHR, 18 January 1978) para 154. Karner v Austria App no 40016/​98 (ECtHR, 24 July 2003)  para 26, where the Court stated: ‘Although the primary purpose of the Convention system is to provide individual relief, its mission is also to determine issues on public-​policy grounds in the common interest, thereby raising the general standards of protection of human rights and extending human rights jurisprudence throughout the community of Convention States’. Rantsev v Cyprus and Russia App no 25965/​04 (ECtHR, 17 January 2010) paras 198 ff. Broniowski v Poland App no 31443/​96 (ECtHR, 22 June 2004) para 194. Burmych and others v Ukraine App no 46852/​13 and others (ECtHR, Grand Chamber, 12 October 2017). Modinos v Cyprus App no 15070/​89 (ECtHR, 24 May 1993).

46 Forlati have been prepared to meet their Convention obligations by scrutinising the Court’s case law and, if necessary, adjusting their legal systems following the finding of a violation in a case against another State, thereby amplifying the effect of the Court’s case law across Europe by taking into account the interpretative authority (res interpretata) of the Strasbourg Court’s judgments.35 Also in the echr context, this systemic effect is one of the reasons explaining the prominent importance of elements such as coherence and predictability in the Court’s case law, which was emphasised for instance in Jones: While the Court is not formally bound to follow its previous judgments, it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from precedents laid down in previous cases.36 Finally, ECtHR case law also performs an ‘inter-​systemic role’, notably vis-​à-​vis other international judicial and quasi-​judicial bodies: not only regional human rights courts and UN treaty-​based bodies, or the Court of Justice of the European Union, but also the icj has referred to ECtHR precedents in its own case law. In the Diallo case, when discussing the amount of compensation due by the Republic of Guinea, the icj expressly acknowledged taking into account the practice in other international courts, tribunals and commissions (such as the International Tribunal for the Law of the Sea, the European Court of Human Rights (echr), the Inter-​American Court of Human Rights (iachr), the Iran-​United States Claims Tribunal, the Eritrea-​ Ethiopia Claims Commission, and the United Nations Compensation Commission), which have applied general principles governing compensation when fixing its amount, including in respect of injury resulting from unlawful detention and expulsion.37 35 36 37

Council of Europe Parliamentary Assembly, ‘Impact of the European Convention on Human Rights in States Parties:  selected examples’, Overview prepared by the Legal Affairs and Human Rights Department, AS/​Jur/​Inf (2016) 04, 8 January 2016, 2. Jones (n 24) para 194. Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Compensation, Judgment) (2012) icj Rep 324 (eg 337, para 33, and 339–​40, para 40). See also Armed Activities in the Territory of the Congo (Congo v Uganda) (Reparations, Order) Declaration of Judge Cançado Trindade, para 13, inviting the Parties and the icj

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Neither the systemic nor the inter-​systemic role of international case law is one-​sided. In other words, ‘progressive’ case law can certainly foster an evolutive interpretation of treaties and the development of customary international law; but at the same time more conservative stances can also ‘chill’ or ‘freeze’ the process of consolidation of rules, which may be emerging but have not yet fully crystallized into customary law. This criticism was raised, notably, as regards the icj judgment in Germany v Italy38 –​a case worth mentioning because also the Naït-​Liman case involves jurisdictional immunities of States and State organs, although this aspect was not addressed by the Court.39 Therefore, international courts are arguably expected to exercise particular care whenever they decide cases involving areas where traditional international legal rules may be undergoing transformation due to the emergence of ‘new’ values or social needs: specifically in such cases, a well construed and thorough reasoning is crucial to the perceived legitimacy of their judgments, regardless of whether they affirm the existence of new rules or adopt a more conservative stance. This would seem to be even more important in a case that concerns the interrelationship between the echr and universal civil jurisdiction as acceptance of the latter –​were it to be in general terms or in the attenuated form suggested by the Institut de droit international –​would favour the implementation of the individual right to obtain reparation for serious violations of human rights. It would also enhance the right of access to a judge, which according to the ECtHR is one of the basic components of the right to a fair trial and must be guaranteed ‘in a manner that is practical and effective’.40 Arguably, it is in this perspective that the difference between the Chamber’s and the Grand Chamber’s approach to the case becomes apparent.

38 39

40

itself to study the case law of ‘other contemporary international tribunals’ on the issue of reparations. See F Salerno, ‘Gli effetti della sentenza internazionale nell’ordinamento italiano’ (2012) 6 DUDI 350, 353, arguing that the icj judgment ‘petrified’ the existing legal framework on immunities. Naït-​Liman (n 2) para 20. On the ‘chilling’ effect of the ECtHR Al-​Adsani judgment see A Saccucci, ‘The Case of Näit-​Liman Before the European Court of Human Rights: a Forum non Conveniens for Asserting the Right of Access to a Court in Relation to Civil Claims for Torture Committed Abroad?’, above in this volume. Jones (n 24) para 187, also stressing the great relevance of the right to a fair trial in a democratic society. Cf also Golder v United Kingdom (ECtHR, 21 February 1975) Series A no 18, para 35.

48 Forlati 3

On the Importance of Reasoning

Indeed, the reasoning of the ECtHR’s Grand Chamber shows better consideration for the Court’s systemic role, as compared to the Chamber, when appreciating the lawfulness of the aims pursued by Switzerland in limiting Mr Naït-​ Liman’s right of access to a Court. The Grand Chamber was not persuaded that an obligation to exercise universal civil jurisdiction can be construed under Article 6 echr, nor could it circumvent the issue altogether –​as the International Court of Justice often does by relying on its own freedom to choose the grounds on which its decisions are based.41 Yet, it sought to mitigate its ‘conservative’ approach. Notably, the Chamber had taken a clear-​cut stance against the existence of an obligation to exercise universal jurisdiction, considering that ‘the practice of states, as expression of an opinio juris (Article 38 para 1 b) of the icj Statute)’ in favour of such a rule was ‘clearly missing’.42 The Grand Chamber adopted a more nuanced position when it posited that those States which recognise universal civil jurisdiction –​operating autonomously in respect of acts of torture –​are currently the exception. Although the States’ practice is evolving, the prevalence of universal civil jurisdiction is not yet sufficient to indicate the emergence, far less the consolidation, of an international custom which would have obliged the Swiss courts to find that they had jurisdiction to examine the applicant’s action.43 41

42

43

The International Court of Justice has on occasion avoided taking a stance on controversial issues with potentially broad ‘systemic’ implications. Arguably, this may happen in situations when it considers that State practice and opinio iuris have not evolved yet into a new legal rule that would better meet ‘new’ needs expressed by the international society and values protected by international law. For a critical appraisal see icj, Obligation to extradite or to prosecute (Belgium v Senegal) (Judgment) [2012] ICJ Rep 402, Declaration of Judge Abraham, paras (3–​4). The Chamber stated that no treaty obligation would bind Switzerland to exercise jurisdiction on Mr Naït-​Liman’s case, and that Swiss authorities ‘n’en étaient pas non plus obligées en vertu du droit coutumier, étant donné que la pratique des États, comme expression d’une opinio juris (article 38  § 1 b) du Statut de la cij en faveur de l’existence d’une compétence universelle civile, [fait] clairement défaut’, see Naït-​Liman (n 2) para 120. ibid para 187. In the next paragraph, the Grand Chamber continues as follows: ‘The Court considers that, as it currently stands, international treaty law also fails to recognise universal civil jurisdiction for acts of torture, obliging the States to make available, where no other connection with the forum is present, civil remedies in respect of acts of torture perpetrated outside the State territory by the officials of a foreign State’ (ibid para 188).

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The Grand Chamber couples this cautious assessment of the current status of State practice with a specific emphasis on the the possibility that the international legal system may evolve, thus limiting or cancelling the ‘wide margin of appreciation’ that States Parties enjoy on such issues at the moment: given the dynamic nature of this area, the Court does not rule out the possibility of developments in the future. Accordingly, and although it concludes that there has been no violation of Article 6 § 1 in the present case, the Court invites the States Parties to the Convention to take account in their legal orders of any developments facilitating effective implementation of the right to compensation for acts of torture, while assessing carefully any claim of this nature so as to identify, where appropriate, the elements which would oblige their courts to assume jurisdiction to examine it.44 It may be interesting to note that the Grand Chamber’s judgment did not simply follow the approach adopted in Jones v United Kingdom as regards immunities of States and State officials:45 it also expressly commended States who, absent an international obligation to do so, nonetheless strive to ‘make access to a court as effective as possible for those seeking compensation for acts of torture’.46 4

On Whether Limitations to the Exercise of Civil Jurisdiction Pursue Legitimate ‘Lawful Aims’: the Exercise of Civil Jurisdiction as a Form of Unlawful Interference in Other States’ Domestic Affairs?

Another element of some relevance in the Grand Chamber’s review of the Chamber’s approach concerns the appraisal of the legality of the aims pursued by Switzerland in limiting Mr Naït-​Liman’s right of access to a Court. The Grand Chamber upheld the Chamber’s stance that the aims broadly related to preserving the effectiveness of the Swiss judicial system were in

44 45

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ibid para 220. While on that occasion the ECtHR Chamber concluded that no human rights exception existed as regards jurisdictional immunities of State officials, it also specified that the law and the practice of States on that particular issue could change and that, ‘in light of the developments currently underway in this area of public international law, this is a matter which needs to be kept under review by Contracting States’, see Jones (n 24) para 215. Naït-​Liman (GC) (n 1) para 218.

50 Forlati keeping with Article 6 of the Convention.47 This aspect of the Grand Chamber’s approach is not particularly convincing, insofar as it blurs the distinction between criminal and civil jurisdiction. Indeed, problems with collecting evidence may arise in the context of proceedings that are not ‘close’ to the events they relate to. The impact of such difficulties is very significant in criminal proceedings, where it risks seriously hampering their outcome.48 In civil proceedings, however, it is in principle for the applicant to prove that the claim to reparation is well founded in fact and in law, on the basis of domestic rules governing the burden of proof; an applicant who submits insufficient evidence to the seised court bears the risk of losing the case on the merits, without thereby undermining the credibility and legitimacy of the domestic jurisdiction involved. The same distinction seems of relevance as regards possible difficulties in the execution of any judgment. In this specific regard, moreover, it may well be that future developments, notably in Tunisia, could lead to opportunities of implementation that could not be foreseen when the Swiss courts dismissed the applicant’s claim. Last but not least, in relation to the risk of forum shopping and of high numbers of similar cases flooding the Swiss judicial system, it would not seem that practical concerns of this nature should as such easily prevail over the right of access to a Court where, as in Mr Naït-​Liman’s case, the right to reparation for international crimes is at stake, and some close connections to the forum exist at the time when the claim is submitted, if not at the time when the acts of torture allegedly took place. Admittedly, this element relates not so much to the legality of the aim pursued by Swiss authorities but

47

48

ibid paras 123–​126: ‘Firstly, there can be little doubt that an action such as the applicant’s, alleging that he had been tortured in Tunisia in 1992, would pose considerable problems for the Swiss courts in terms of gathering and assessing the evidence. […] In addition, the enforcement of a judgment giving effect to such an action would entail practical difficulties […]. In this connection, one might wonder, from the perspective of the effective right of access to a court, whether a judgment delivered in such circumstances could effectively be enforced […]. Further, it seems legitimate for a State to wish to discourage forum shopping, in particular in a context in which the resources allocated to domestic courts are being restricted. […] Moreover, the Court considers justified the fear expressed by the Government to the effect that accepting an action such as the applicant’s, where the connection with Switzerland at the relevant time was relatively tenuous, would be likely to attract similar complaints from other victims in the same situation with regard to Switzerland, and thus to result in an excessive workload for the domestic courts. It follows that a reasonable restriction on admissible complaints is likely to ensure the effectiveness of the justice system’. Compare Naït-​Liman (n 2) paras 106 ff. Cf D Hovell, ‘The “Mistrial” of Kumar Lama:  Problematizing Universal Jurisdiction’, EJILTalk!, 6 April 2017, available at (last accessed 31 December 2019).

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rather to the proportionality of the limitation –​an aspect dealt with elsewhere in this volume.49 Be that as it may, what matters for the purposes of this contribution is rather the Grand Chamber’s treatment of another argument raised by the Chamber –​a treatment which ultimately did not change the outcome of the case, but arguably also reflects its consideration for the systemic impact of its judgments in the framework of referral proceedings under Article 43 echr. The Chamber envisaged the risk that the exercise of civil jurisdiction in cases such as Naït-​Liman would imply ‘undesirable interference with another State’s internal affairs’.50 That this line of argument could be accepted by an international human rights court seems at odds with the premise on which the whole international system of protection of human rights is presently based: namely, that inducing other States to comply with the relevant obligations (including the obligation to ensure reparation in case of serious violations) is not per se undesirable, nor incompatible with the customary international law principle of non-​intervention in domestic affairs –​all the more so in the relations between countries which are both parties to the UN Convention against Torture. Indeed, the possibility of infringing the principle of non-​intervention through the exercise of a State Party’s adjudicative jurisdiction was discussed in the Jorgic case, where the ECtHR did not uphold the applicant’s argument to this effect. Of course, the situation in Naït-​Liman should be distinguished from Jorgic as Switzerland, according to the stance taken by its highest Courts, had not established a ground of jurisdiction in the circumstances, whereas Germany had. It is however noteworthy that, in Jorgic, the Court held that it was not arbitrary for States Parties to apply the principle of universal (criminal) jurisdiction, although the Convention against Genocide sets out an obligation to exercise such jurisdiction only for the State on whose territory the crime was perpetrated. The ECtHR reached this conclusion also because, pursuant to Article I of the Genocide Convention, the Contracting Parties were under an erga omnes obligation to prevent and punish genocide, the prohibition of which forms part of the jus cogens. In view of this, the national courts’ reasoning that the purpose of the Genocide Convention, as expressed notably in that Article, did not exclude jurisdiction for the punishment of genocide by States whose laws establish 49 50

See again the contribution of Saccucci (n 39). ‘La Cour n’exclut pas non plus que l’acceptation d’une compétence universelle puisse provoquer des immiscions indésirables d’un pays dans les affaires internes d’un autre’: Naït-​ Liman (n 2) para 107 (emphasis added).

52 Forlati extraterritoriality in this respect must be considered as reasonable (and indeed ­convincing).51 Arguably, the same line of reasoning should be adopted as regards civil liability for acts of torture, which are also a violation of peremptory erga omnes obligations, even in a context where civil claims are not linked to a criminal prosecution. On the contrary, the Chamber’s approach in Naït-​Liman may imply the conclusion that Switzerland would not be entitled to exercise adjudicative jurisdiction in the case –​once again, this would entail a potentially ‘chilling’ effect on the development of rules on the exercise of jurisdiction that would enhance opportunities for victims of torture to obtain reparation. Also in this perspective, the Grand Chamber’s judgment in Naït-​Liman is more in keeping with the Court’s role as guardian of international human rights obligations than the Chamber’s. The Grand Chamber simply accepted, ‘lastly, and as a subsidiary consideration, […] that a State cannot ignore the potential diplomatic difficulties entailed by recognition of civil jurisdiction in the conditions proposed by the applicant’.52 As diplomatic difficulties are a risk that States are perfectly entitled to face under international law, the Grand Chamber judgment should be understood as confirming that the exercise of universal civil jurisdiction over claims related to torture, albeit not yet imposed under Article 6 echr,53 is at least a faculté –​a choice that falls, for the time being, within the margin of appreciation of the States parties. Therefore, the difference between the approach of the Chamber and that of the Grand Chamber is not simply a matter of nuances, although it ultimately did not change the outcome of the case.54 5

Conclusions: the Function of International Tribunals and the Limits of ‘Judicial Creativity’

International courts such as the ECtHR can’t choose the cases they will have to decide, nor the timing of their submission. Moreover, it is not the ECtHR’s task to make ‘moral open-​ended judgments’ nor to adopt a ‘natural-​law approach’55 in deciding difficult cases, as Judge Dedov opines in his Dissenting Opinion.56 51 52 53 54

Jorgic (n 15) para 68. Naït-​Liman (GC) (n 1) para 127. See Bonafè (n 2) 1103. For a different appraisal see Roorda, Ryngaert (n 11) and the pessimistic considerations of De Marziis (n 1). 55 Dissenting Opinion of Judge Dedov, 68. 56 ibid 74.

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The Naït-​Liman case reached the Grand Chamber at a stage where it did not deem it possible to assert the existence of a clear-​cut obligation under the Convention to exercise universal civil jurisdiction in respect of torture, nor specifically for Swiss authorities to exercise civil jurisdiction in the instant case. This stance cannot be read simply in terms of ‘judicial policy’, as a form of acceptance of the emphasis currently put by Contracting States on the margin of appreciation as a ‘value’ underlying the Convention system.57 It is in line with previous case law concerning the exercise of ‘extraterritorial’ jurisdiction over international and transnational crimes58 and reflects the lack of a clear trend in State practice in this regard. But regardless of whether one considers the operative part of the judgment to be perfectly correct, or would rather advocate a ‘creative’ approach leading to a more satisfactory solution for the applicant (possibly on the basis of the principle of effective protection of human rights which underlies the Convention,59 rather than on natural justice as suggested by Judge Dedov), it remains true that international jurisdictions should be particularly careful in cases where relevant international legal rules may be undergoing a process of change. This applies especially for permanent, multilateral institutions like the ECtHR, since the systemic impact of their case law may ‘chill’ or ‘freeze’ such developments. Although the ECtHR cannot ‘legislate’, thus overstepping the limits of its judicial function, arguably its role as an International Human Rights institution is that of fostering, rather than hindering, the ‘reappraisal under international law of the relative importance of fundamental human rights and state sovereignty’ that lies at the basis of the modern idea of universal civil jurisdiction.60 While the Chamber failed to meet this expectation in the Naït-​Liman case, the Grand Chamber’s judgment displayed better consideration for the systemic and inter-​systemic role of the ECtHR in this regard. On the one hand, it explained why the Chamber could not have settled the case by construing an obligation for Switzerland to exercise its criminal jurisdiction against Mr 57

58 59 60

cf in particular Article 1 of Protocol no 15, envisaging the addition of a new recital to the echr Preamble to the effect that ‘the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention’. The Protocol is not yet in force but is the expression of a political climate where the Court’s perceived judicial activism has given rise to serious criticism by some Governments and domestic courts. See notably the Jorgic case discussed above. Cf De Marziis (n 1) 8. Donovan, Roberts (n 11) 143.

54 Forlati AK  –​which, in turn, might have allowed Mr Naït-​Liman to submit his civil claims in the framework of criminal proceedings, avoiding any decision on universal civil jurisdiction as such. On the other hand, it toned down some of the Chamber’s most worrying assertions as to the legality of the aims pursued by the Swiss authorities in limiting the right of access to a court. Its findings confirm that the exercise of ‘extraterritorial’ civil jurisdiction over acts of torture  –​and, one may reasonably deduct, over international crimes in general –​is not only a faculté in present-​day international law, but also expressly encouraged within the echr system. By considering that such a choice still falls under the Contracting Parties’ margin of appreciation, the Court put the ‘ball’ back into their hands –​and more broadly into the hands of States, which may enhance opportunities for victims of torture to seek reparation by allowing for the exercise of universal civil jurisdiction despite the risk of ‘diplomatic difficulties’. Albeit without construing an obligation to exercise universal civil jurisdiction over acts of torture under the Convention, the Grand Chamber thus re-​positioned the Court’s case law in the line of its previous jurisprudence and, arguably, of the present state of general international law on the issue. Thus, the transition between the Chamber and the Grand Chamber in Naït-​Liman implied a significant –​and, it is submitted, welcome –​shift in the Court’s approach to the case, which highlights the importance of the referral mechanism and, more generally, of the Grand Chamber’s role as a ‘constitutional’ guardian of the Convention system and of its place in the broader context of the international legal order.

Bibliography

Bonafè BI, ‘La Corte europea dei diritti dell’uomo e la giurisdizione universale in materia civile’ (2016) 99 RDI 1100. Bucher A, ‘La compétence universelle civile’ (2015) 372 Recueil des Cours de l’Académie de Droit International 21. Condorelli L, ‘L’autorité des décisions des juridictions internationales permanentes’, in SFDI, La juridiction internationale permanente –​Colloque de Lyon (Pedone, 1987) 277. De Marziis C, ‘Diritto di accesso a un giudice e giurisdizione civile universale dinanzi alla Corte europea dei diritti umani’ (2018) 12 DUDI 693. Donovan FD and Roberts A, ‘The Emerging Recognition of Universal Civil Jurisdiction’ (2006) 100 AJIL 142. Gaja G, ‘The Protection of General Interests in the International Community –​General Course on International Law’ (2011) 364 Recueil des Cours de l’Académie de Droit International 9.

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Hovell D, ‘The “Mistrial” of Kumar Lama: Problematizing Universal Jurisdiction’, EJILTalk!, 6 April 2017, available at . Hovell D, ‘The Authority of Universal Jurisdiction’, (2018) 29 EJIL 427–​56. Jain AG, ‘Universal Civil Jurisdiction in International Law’ (2015) 55 Indian J Intl L 209. Kolb R, The International Court of Justice (Hart Publishing 2014). Mora PD, ‘Universal Civil Jurisdiction and Forum Necessitatis: The Confusion of Public and Private International Law in Naït-​Liman v. Switzerland’ (2018) 65 Netherlands Intl L Rev 155. Nkenkeu-​kek S, ‘L’arrêt Naït-​Liman c.  Suisse ou l’occasion manquée par la Cour européenne des droits de l’homme de renforcer l’effectivité du droit des victimes d’obtenir réparation de violations graves des droits de l’homme’ (2018) 29 Rev trim dr homme 985. Pavoni R, ‘Giurisdizione civile universale per atti di tortura e diritto di accesso al giudice: la sentenza della grande camera della Corte europea dei diritti umani nel caso Naït-​Liman’ (2018) 101 RDI 888. Rietiker D, ‘The Case of Näit-​Liman v. Switzerland Before the European Court of Human Rights: Where Are the Limits of the Global Fight Against Torture?’, Harvard Intl LJ, 15 March 2019, available at . Ryngaert C, ‘From Universal Civil Jurisdiction to Forum of Necessity: Reflections on the Judgment of the European Court of Human Rights in Naït-​Liman’ (2017) 100 RDI 782. Salmon J, ‘Le concept de raisonnable en droit international public’, in Le droit international, unité et diversité : mélanges offerts à Paul Reuter (Pedone, 1981) 447. Salerno F, ‘Gli effetti della sentenza internazionale nell’ordinamento italiano’ (2012) 6 DUDI 350. Sapienza R, ‘Sul margine d’apprezzamento statale nel sistema della Convenzione europea dei diritti dell’uomo’ (1991) 74 RDI 571. von Bogdandy A and Ventzke I, In Whose Name? A Public Law Theory of International Adjudication (oup 2012). Weisburd AM, Failings of the International Court of Justice (oup 2016).

chapter 3

Interpretation of the European Convention on Human Rights Lessons from the Naït-​Liman Case Malgosia Fitzmaurice 1

Introduction

This Chapter will be devoted to the analysis of the interpretative techniques adopted by the European Court of Human Rights (ECtHR), illustrated by the case of Naït-​Liman v Switzerland.1 There are numerous publications devoted both to the interpretation of treaties in general2 and to the interpretation of particular regimes of international law, including human rights.3 Therefore, there is no need to dwell in depth on these legal questions  –​suffice it to present an overview of general system of interpretation under the regime of the 1969 Vienna Convention on the Law of Treaties (vclt), and to reflect on the singularities of the method of the interpretation adopted by the ECtHR through the analysis of the Naït-​Liman case. It is not the intention of the author to engage in analysis of the merits of case (universal civil jurisdiction and related issues), but exclusively to focus on the questions of the law of treaties, ie interpretation in this case, against the wider background of general theory of interpretation and the interpretative techniques of the ECtHR.

1 Naït-​Liman v Switzerland App no 51357/​07 (ECtHR, 21 June 2016); Naït-​Liman v Switzerland App no 51357/​07 (ECtHR, GC, 15 March 2018). 2 The leading monograph on the subject is R Gardiner, Treaty Interpretation (2nd edn, oup 2015). 3 See eg G Letsas, A Theory of Interpretation of the European Convention on Human Rights (oup 2007); M Fitzmaurice, ‘Interpretation of Human Rights Treaties’ in D Shelton (ed), The Oxford Handbook of International Human Rights Law (oup 2015) 739; B Çali, ‘Specialized Rules of Treaty Interpretation: Human Rights’, in D Hollis (ed) The Oxford Guide to Treaties (oup 2012)  525; C Djeffal, Static and Evolutive Treaty Interpretation (cup 2016).

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004408579_005

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The Classic Rule of Treaty Interpretation as Reflected in the vclt

The general rule of treaty interpretation is contained in Article 31 of the vclt. This provision merges the principles of textuality, ordinary meaning and integration, as well as the teleological principle of the ‘object and purpose’, which is itself regarded as incorporating the principle of effectiveness (all these principles preceding the vclt).4 It may be noted that even though they are presented in an order that may signify some primacy to the text, a hierarchy among the various components of Article 31 is far from categorically or even clearly expressed. The main feature, which has been emphasised in literature, is that the rule of interpretation adopted in Article 31 is the ‘crucible approach’, according to which the various interpretative elements are thrown together in a ‘single combined operation’.5 This approach signifies, it may be suggested, that the vclt rules are not step-​by-​step formulas producing a conclusive interpretation in each and every case. The interpretative method, instead, indicates factors or elements that should be taken into account, which are text, preamble, annexes, related agreements, preparatory work, etc. Although the rules of interpretation contain a certain logical sequence, they should not necessarily be used in each and every case, nor should they always be sequentially applied.6 All international courts and tribunals, including the International Court of Justice (icj) and national courts, have endorsed the method of interpretation included in Article 31 of the vclt. It has been commented that the application of the rule of interpretation of the vclt by the icj is ‘virtually axiomatic’.7 The icj’s starting point in relation to interpretation is the ordinary meaning of the text, taking into account ‘all the consequences which normally and reasonably flow from that text’.8 The ordinary meaning is not an abstract notion, but instead must be interpreted in the light of the ‘place which that phrase occupies in the text to be interpreted’.9 Article 31 (2) defines that context of the treaty. Much analysis has been devoted to the question of the role of the intention of the parties to the treaty in its interpretation. The text of Article 31 of the

4 G Fitzmaurice, ‘The Law and Procedure of the International Court of Justice: Treaty Interpretation and Certain Other Treaty Points’ (1951) 28 British Ybk Intl L 1. 5 Gardiner (n 2). 6 ibid. 7 ibid. 8 I Sinclair, The Vienna Convention on the Law of Treaties (2nd edn, Manchester UP 1984) 121. 9 ibid 121.

58 Fitzmaurice vclt is silent on the intention of the parties. However, the prevailing view is that the latter is one of the elements which are taken into account in the interpretative process, since, as was stated by the icj, it is reflected in the text of treaty ‘and the other relevant factors in terms of interpretation’.10 Therefore, it was explained that the intention of the parties to the treaty, while not explicitly one of the elements of the means of the interpretation, is included by means of an objectivised procedure.11 However, such a neat and seemingly straightforward procedure is often impossible to follow, considering that in a world with nearly two hundred States drawing and adhering to treaties, the task of finding a common intention of the parties has become increasingly difficult, if not impossible. Hence, the scholarly conclusion that ‘a search for the common intention of the parties can be likened to a search for the pot of gold at the end of the rainbow’.12 Be as it may, the intention of the parties remains, as elusive as it is, a crucial factor in relation to interpretation, with a focus on a battle between the objective (textual) and the subjective (intent) schools.13 As I stated elsewhere, ‘[a]dhering to the “intention of the parties” is still one of the final litmus tests of traditional interpretative techniques’.14 The incorporation of the principle of integration has broadened the scope of ‘ordinary meaning’, which is of a great importance in relation to human rights treaties interpretation. Article 31(2) adds to this, defining the context so that it extends beyond the text of the treaty (including its preamble and annexes) also to include other related agreements. The use of the travaux préparatoires (Article 32) is yet another divisive question in international law, as evidenced by eg the case law of the icj.15 The ‘ordinary meaning’ can appear to be a deceptively simple tool of interpretation. However, in relation to human rights treaties, there are many different abstract concepts and principles, which may acquire different meaning in different contexts. There are also other interpretative tools which use may prove to be continuous and divisive, such as the principles of ‘contemporaneity’ 10

Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua) (Judgment) [2009] icj Rep 213, 237. 11 See on this E Bjorge, The Evolutionary Interpretation of Treaties (oup 2014) 2–​3. 12 ibid 130. 13 M Waibel, ‘Demystifying the Art of Interpretation’ (2012) 22 EJIL 571, 572. 14 Fitzmaurice, ‘Interpretation’ (n 3) 747. 15 Maritime Delimitation of the Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) (Jurisdiction and Admissibility) [1994] icj Rep 112; Maritime Delimitation of the Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) (Jurisdiction and Admissibility) [1995] icj Rep 6. In this respect see Vice-​President Schwebel’s Dissenting Opinion, ibid 27, 28 ff.

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and the ‘object and purpose’. The terms used in treaties change their meaning with the usage and the passage of time. A commonly held view purports that the meaning of the ‘object and purpose’ of a treaty is established from the examination of the preamble of the treaty. However, the inherent uncertainty surrounding this concept requires, at times, further investigation, which is not confined to the preamble of the treaty, as has been evidenced by the Oil Platforms case. In this case, the icj took into account the whole context of the treaty, not just its Article 1, in order to establish its object and purpose.16 In fact the usefulness of the vclt interpretative regime is not at all clear in relation to human rights treaties. The notion of ‘object and purpose of a treaty’ should be treated with caution, in view of many authors, as in extreme cases it can lead to meanings that extend beyond the boundaries of treaty interpretation.17 Other scholars and judges are of the view that reliance on the object and purpose of a treaty is not only fully in accordance with vclt Article 31(1), but is particularly appropriate in the context of human rights obligations.18 The object and purpose is also related to the doctrine of effectiveness, captured in the maxim ut res magis valeat quam pereat –​ie treaties are presumed to have legal force and effect. A treaty therefore may be interpreted expansively in order to ensure that all of its provisions have an independent meaning (effet utile).19 The provisions of human rights treaties are at times perceived as requiring more expansive interpretation than is permitted under the terms of the vclt; however, views vary greatly in this respect, from approaching the vclt as a ‘straight jacket’ with no use in a contemporary world,20 to considering it as the only instrument preventing ‘illegal’ interpretations.21 One important tool in human rights treaty interpretation is the so-​called ‘systemic interpretation’.22 This tool was largely dormant until the Oil Platforms 16 17 18 19 20 21 22

Case Concerning Oil Platforms (Islamic Republic of Iran v United States) (Preliminary Objections) [1996] icj Rep 803, para 31. On object and purpose see eg I Buffard and K Zemanek, ‘“The Object and Purpose of a Treaty”: An Enigma?’ (1998) 3 ariel 311. Sinclair (n 8) 33. L Caflisch and AA Cançado Trindade, ‘Les conventions américaine et européenne des droits de l”homme et le droit international general’ (2004) 108 RGDIP 5, 12. G Fitzmaurice, ‘The Law and Procedure of the International Court of Justice 1951–​ 54: Treaty Interpretation and Other Treaty Points’ (1957) 33 British Ybk Intl L 203, 211. JHH Weiler, ‘Prolegomena in a Meso-​Theory of Treaty Interpretation at the Turn of the Century’ (iii International Legal Theory Colloquium, New  York 2008)  on file with the author. B Schlütter, ‘Aspects of Human Rights Interpretation by the UN Treaty Bodies’, in H Keller and G Ulfstein (eds), Human Rights and Treaty Bodies: Law and Legitimacy (cup 2012) 261. P Merkouris, Article 31(3)(c) VCLT and the Principle of Systemic Integration. Normative Shadows in Plato’s Cave (Brill Nijhoff 2015).

60 Fitzmaurice case, and a few of the wto cases, which have brought about its renaissance. There is already a vast body of literature on this subject, which, however, remains rather elusive and not very well defined (often being confused with evolutionary interpretation). In broad brush-​strokes, this principle is based on the premise that no treaty exists in a legal vacuum and has to be interpreted in a wider context of international law, taking account of both relevant treaties and the norms of customary international law, under vclt Article 31(3)(c). The other somewhat puzzling aspect of treaty interpretation is ‘evolutionary interpretation’, which also remains a mysterious concept, in particular as to the limits of such interpretation, the role of the intention of the parties, and the principle of good faith, despite many attempts at clarification. It plays, however, an important role in the jurisprudence of the ECtHR. It can be defined as a situation in which an international court or tribunal approaches the terms of a treaty on the basis that it is capable of evolving, as treaties are not permanently fixed, and new developments in international law are taken into account.23 The icj has embraced evolutionary interpretation in its jurisprudence, most notably in the Namibia advisory opinion24 and the Navigational Rights case.25 The Court has opined that evolutionary interpretation ‘must be understood to have the meaning they [provisions] bear on each occasion on which the Treaty is to be applied, and not necessarily their original meaning’.26 Although evolutionary interpretation is an established element of the icj’s interpretative method, it has been fully developed in a more sophisticated and nuanced (albeit controversial) manner, through the jurisprudence of human rights courts. Gerald Fitzmaurice has strongly advocated the view that such a method of interpretation may only be adopted if the parties intended it; and such an intention cannot be presumed. Any contrary practice, according to him, amounts to judicial legislation.27 This statement clearly evidences the inherent problem with establishing the intention of the parties in case of evolutionary interpretation, absent an explicit provision to this effect in the treaty. Arato also expressed some concerns as to the relevance of the intention of the parties in this respect, ie whether it must be explicit or not and, if not, what evidence might provide the basis for asserting the evolutionary character of

23 24 25 26 27

Bjorge (n 11) 59. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276(1970) (Advisory Opinion) [1971] icj Rep 16, para 53. Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua) (n 10) para 63. ibid para 70. Fitzmaurice (n 19) 225.

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a treaty.28 These are, in the view of the present author, the crucial questions pertaining to evolutionary interpretation. There is a view that the concoction of a principle of evolutionary interpretation is, at times, totally redundant, because the evolutionary development of treaty provisions could be achieved without it on the basis of the interpretation of the plain meaning of the text read in good faith –​for instance in the case of treaties drafted in generic terms.29 However, such an approach, even if justifiable in some cases, is not applied uniformly and is somewhat esoteric. It does not take into account the different, or even at times capricious, approaches of judicial bodies to issues of treaty interpretation. It may thus be said that the evolutionary method of interpretation is still developing through the practice of international courts and tribunals, along with its relationship to other means of interpretation. 3

Special Character of Human Rights Treaties?

A very sensitive question is whether human rights treaties have a special character. The generally held view is that, in themselves, they do not constitute a special form of treaty, with their own discrete rules. The view that is most adhered to is that human rights law is part of general international law, and should be treated as such.30 That approach (a correct one, in the view of the present author) does not mean, however, that human rights treaties do not share certain special characteristics that have an impact on their ­interpretation. In particular, human rights tribunals have been consistent in asserting the ‘constitutional’ nature of human rights treaties, and the partly non-​reciprocal nature of the rights and obligations that derive from them. These are very nuanced legal questions, which cannot be easily defined or categorised. It cannot be denied that such treaties also contain reciprocal provisions –​after all, they are concluded by States in a similar way to settlement of dispute procedures. As it was said, ‘reciprocity will remain the principal leitmotif, a constructive, mitigating and stabilizing force, the importance of which can 28 29 30

J Arato, ‘Subsequent Practice and Evolutive Interpretation:  Techniques of a Treaty Interpretation Over Time and Their Diverse Consequences’ (2010) 9 LPICT 445, 466. Bjorge (n 11) 191–​192. C Greenwood, ‘Jurisdiction, NATO and the Kosovo Conflict’ in P Capps, MD Evans, S Konstadinidis (eds), Asserting Jurisdiction: International and European Legal Perspectives (Hart Publishing 2013) 145; Bjorge (n 11) 28–​29.

62 Fitzmaurice hardly be overestimated’.31 The perceived non-​reciprocal character of human rights treaties impacts on many areas of the law of treaties, including ­reservations. There are several statements of the Inter-​American Court on Human Rights (IACtHR),32 as well as the well-​known General Comment no 24 of the Human Rights Committee,33 that found the regime of the reservations to treaties under the vclt inapplicable to human rights treaties due to their non-​reciprocal character. This is, however, far from clear. Alain Pellet, the Special Rapporteur on the Reservations to Treaties, held the view that the vclt regime is sufficiently flexible to be applicable to any type of a treaty, including human rights treaties.34 This view can be contrasted with that of Craven, who suggests that the recognition of human rights as having a non-​reciprocal character may lead to the modification of, if not the complete disregard for, certain principles of general international law.35 In the view of the present author, a balanced approach is called for. Extreme approaches that either deny that human rights treaties are part of general law, on the one hand, or refuse to acknowledge their singularities, on the other, do not reflect the place of these treaties in international law. They contain both reciprocal and non-​reciprocal norms; undoubtedly, though, they are international agreements that conform to the definition of a treaty in the vclt. Their special characteristics do not automatically exclude the application of the vclt rule on interpretation. It was correctly observed that the vclt imposes a general framework, which allows for a certain margin of discretion.36 The present author is of the view that such a balanced approach serves better the unity of international law. 31 32 33

34 35 36

B Simma, ‘From Bilateralism to Community Interests’ (1994) 250 Recueil des Cours de l’Académie de Droit International 317, 400. The Effect of Reservations on the Entry into Force of the American Convention on Human Rights (Arts 74 and 75) Advisory Opinion OC-​2/​82, Inter-​American Court of Human Rights Series A no 2 (24 September 1982) paras 10 and 29. hrc, ‘CCPR General Comment No 24:  Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols thereto, or in Relation to Declarations under Article 41 of the Covenant’ (4 November 1994) UN Doc CCPR/​C/​21/​ Rev.1/​Add.6. ilc, ‘Second report on reservations to treaties, by Mr. Alain Pellet, Special Rapporteur’ (10 May and 13 June 1996) UN Doc A/​CN.4/​477 & Corr.1 & 2 and Add.1 & Corr.1–​4. M Craven, ‘Legal Differentiation and the Concept of Human Rights Treaty in International Law’ (2000) 11 EJIL 489, 491–​495. J Pauwelyn and M Elsig, ‘The Politics of Treaty Interpretation’ in J Dunoff and M Pollack (eds), Interdisciplinary Perspectives on International Law and International Relations (cup 2013) 445.

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The extensive (if not exorbitant) suggested expansion of self-​contained regimes, which was a trend among international lawyers some time ago, does not reflect the reality and practice of international law, which veers towards unity, inter alia by the continuous application of the vclt provisions by various courts and tribunals, in various fields of international law. 4

vclt and the European Court of Human Rights

4.1 Generally The rule of interpretation of the vclt by the ECtHR (and for that matter by other human rights courts and tribunals) is fairly well documented. However, it has provoked widely differing opinions among scholars. With reference to the ECtHR, some authors firmly assert that it endorses the rule of the vclt,37 while others disagree. Letsas, for instance, states that it was fair to say that the vclt has not played a significant role in the interpretation method of the European Court.38 Though controversy remains, more recent scholarship appears to be moving towards some consensus that, subject to important limited exceptions, the interpretative methods of human rights courts and tribunals are consistent with the provisions of the vclt, albeit with a relatively wide interpretation of those provisions.39 Djeffal has investigated in a great detail the interpretative practice of the ECtHR and has come up with the following statistics relating to the frequency of use of the various general methods of interpretation by the ECtHR: context, 20; subsequent practice, 19; relevant rules, 15; object and purpose, 9; travaux, 4; subsequent agreement, 2.40 As mentioned above, the ECtHR adheres to the canons of interpretation of the vclt. However, at times it approaches the various elements of the Vienna rule in a different manner. In broad-​brush strokes Djeffal’s analysis indicates that in the ECtHR’s approaches to static or evolutionary interpretation, there seem to be three distinct categories. Some techniques can be termed as 37

D Rietiker, ‘The Principle of “Effectiveness” in the Recent Jurisprudence of the European Court of Human Rights. Its Different Dimensions and its Consistency with Public International Law  –​No Need for the Treaty Sui Generis’ (2010) 79 Nordic J Intl Law 245, 248. 38 G Letsas, ‘Strasbourg”s Interpretation Ethics: Lessons for the International Lawyer’ (2010) 21 EJIL 509. 39 M Forowicz, The Reception of International Law in the European Court of Human Rights (oup 2010); Çali (n 3); Djeffal (n 3) 323. 40 ibid.

64 Fitzmaurice ‘evolutionary’ (object and purpose, subsequent practice, relevant rules); and some as ‘static’ (ordinary meaning and preparatory work).41 However, it may be said that, in certain instances, the Court has moved away from purely textual analysis, in order to incorporate its own particularities. For example, in the Christine Goodwin case, the Court changed its understanding of the ordinary meaning of Article 12 of the echr and stated that marriage was connected to the concept of the family in such a way that biological factors were of decisive importance.42 It found that the ordinary meaning of the term was ­inconclusive. As Djeffal notes, only in rare cases did the Court imply that the ordinary meaning of the terms was the decisive argument.43 In the Rantsev case, the Court has explicitly gone beyond the ordinary meaning in an analogical manner. It found that Article 4 of the echr was applicable to trafficking in persons, without attaching to it any of the alternatives in Article 4.44 Subsequent agreement and practice and relevant rules have played a significant role as an interpretative tool in the judicial practice of the ECtHR. Demir and Baykara is the most significant case in relation to the relevant rules, in connection with the application of Article 31(3)(c) of the vclt. The Court took into account general principles of international law and the jus cogens status of the norms in question, as well as how they are interpreted by the relevant courts and tribunals.45 It was noted that this case had a very significant, if not transformative, effect on the Court’s interpretation; and that it marks a shift in power to hold contracting States to legal instruments beyond their control. Nevertheless, it is said that the Court’s approach is weakened by not engaging meaningfully with the components of Article 31(3)(c).46 It was observed that the Court also strengthened the observation that the relevant rules operate as a technique; therefore, the Convention need not be interpreted in perfect harmony with other international treaties. The Court can thus apply a higher standard than that contained in relevant instruments and can rely on conventions that had nothing to do with the provisions of the 41 42

ibid 323–​4. Christine Goodwin v United Kingdom App no 28957/​95 (ECtHR, 11July 2002); Djeffal (n 3) 324. 43 ibid. 44 Rantsev v Cyprus and Russia App no 25965/​04 (ECtHR, 7 January 2010); Djeffal (n 3) 326. 45 Demir and Baykara v Turkey App no 34503/​97 (ECtHR, 12 November 2008); Djeffal (n 3) 331. 46 M Forowicz, ‘Factors Influencing the reception of International Law in the ECtHR’s case law:  an Overview’ in M Andenas and E Bjorge (eds) A Farewell to Fragmentation. Reassertion and Convergence in International Law (cup 2015) 191.

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Convention that were in question.47 Finally, the Court relies on soft law, non-​ binding instruments; and has applied the provisions of treaties that were not applicable to the parties in question.48 There is no doubt that, apart from interpretative techniques of the vclt, the ECtHR’s interpretation is based on principles that are singular to its own judicial practice. The most important single principle is that of common values or the consensus method, which the Court enunciated in the Demir and Baykara case: in defining the meaning of terms and notions in the text of the Convention, can and must take into account elements of international law other than the Convention, the interpretation of such elements by competent organs, and the practice of European States reflecting their common values. The consensus emerging from specialised international instruments and from the practice of contracting States may constitute a relevant consideration for the Court when it interprets the provisions of the Convention is specific cases.49 The other relevant principles underlying the interpretation of other conventions may be said to be as follows: the convention as a ‘living instrument’; the margin of appreciation doctrine; autonomous interpretation. The ‘convention as a living instrument’ approach –​ie that the Convention has to be interpreted in accordance with present day standards and values, thus applying the ‘dynamic approach’  –​was first verbalised by the Court in the famous Tyrer v United Kingdom case.50 This ‘living instrument’ approach broadly conforms to the method of evolutionary interpretation. By far, the most complex tool in the context of interpretation of the ECtHR is the much analysed ‘margin of appreciation’ doctrine,51 which is not included in the text of the Convention, but was instead initiated in the case law of the

47 48 49 50 51

Djeffal (n 3) 332. ibid 334–​5. Demir and Baykara (n 44) para 85. Tyrer v United Kingdom App no 5856/​72 (ECtHR, 25 April 1978). See eg Y Shany, ‘All Roads Lead to Strasbourg?: Application of the Margin of Appreciation Doctrine by the European Court of Human Rights and the UN Human Rights Committee’ (2018) 9 J Intl Dispute Settlement 180; E Benvenisti, ‘Margin of Appreciation, Consensus and Universal Standards’ (1999) 32 J L Politics 843; M Saul, ‘The European Court of Human Rights Margin of Appreciation and the Processes of National Parliaments’ (2015) 15 Human Rights L Rev 745.

66 Fitzmaurice Court.52 Suffice it to say that this doctrine is rooted in a need for the Court to balance its subsidiary role in safeguarding human rights application against the fundamental and primary function of national authorities in this respect. The latter, being better equipped to deal with the implementation of human rights, therefore have a ‘margin of appreciation’, or discretion, which varies, but is not unlimited. The ECtHR exercises a supervisory function, which ‘concerns both the aim of the necessary measure challenged and its necessity’ in the context.53 The margin of appreciation doctrine is still debated; and the Court is frequently challenged regarding the manner in which it applies it, and especially its lack of consistency. Finally, ‘autonomous interpretation’ means that the terms of the Convention have their own meaning, regardless of national legislation, thus empowering the Court to apply this principle.54 4.2 The Golder Case The interpretative techniques adopted by the ECtHR in the Golder case are very relevant and instructive in the context of the interpretation of the Naït-​ Liman case, as both concern Article 6(1) of the echr. Prima facie, the Court relied on the Vienna rule of the interpretation. It said as follows: The Court is prepared to consider, as do the Government and the Commission, that it should be guided by Articles 31-​33 of the Vienna Convention of 23 May 1969 on the Law of Treaties. The Convention has not yet entered into force and it specifies, at Article 4, that it will not be retroactive; but its Articles 31 to 33 enunciate in essence generally accepted principles of international law to which the Court has already referred on occasion. In this respect, for the interpretation of the European Convention, account is to be taken of those Articles subject, when appropriate, ‘to any relevant rules of the organisation’.55 The Court read into the Convention the right of access to a court, a right not expressly granted therein (sometimes referred to as ‘an un-​enumerated right’56). The United Kingdom government argued against implying any right 52

Lawless v Ireland (no 3) App no 332/​57 (ECtHR, 1 July 1961); Handyside v United Kingdom App no 5493/​72 (ECtHR, 7 December 1976). 53 ibid para 48. 54 See Engel and Others v Netherlands App no 5370/​72 (ECtHR, 8 June 1976). 55 Golder v United Kingdom App no 4451/​70 (ECtHR, 21 February 1975) para 29. 56 Letsas, ‘Strasbourg’s Interpretation’ (n 38) 509.

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that the Convention does not explicitly include. Although the Court’s reasoning seemed to rely on the vclt rules of interpretation, it interpreted Article 6 of the echr in a novel manner, by determining that the right was ‘inherent’ in another right which was enumerated in the Convention. The ECtHR did so on the basis that such a determination was necessary to achieve the object and purpose of the Convention and to render an expressly guaranteed right ‘effective’. The Court relied in particular on references to the rule of law in the Preamble: It may also be accepted, as the Government submitted, that the Preamble does not include the rule of law in the object and purpose of the Convention, but points to it as being one of the features of the common spiritual heritage of the member States of the Council of Europe. The Court, however, considers, like the Commission, that it would be a mistake to see in this reference a merely ‘more or less rhetorical reference’ devoid of relevance for those interpreting the Convention. One reason why signatory Governments decided to take the first steps for the collective enforcement of certain of the Rights stated in the Universal Declaration was their profound belief in the rule of law. It seems both natural and in conformity with the principle of good faith (Article 31(1) of the Vienna Convention) to have in mind the widely proclaimed consideration when the terms of Article 6 para 1 according to their context and in light of the object and purpose of the Convention.57 The line of the reasoning of the Court can be summarised as follows:  (i) in interpretation, one should look to the object and purpose of law; (ii) the object and purpose of the echr is to promote the rule of law; (iii) one can scarcely conceive of the rule of law in civil matters without the right of the access to the court.; (iv) the right of access to the court is inherent in the right to fair trial (Article 6 of the echr); (iv) the ECtHR protects the right of access to court.58 The Court called the right of access to court ‘inherent’ to a right that was already in the Convention. This practice of the Court was not followed frequently. However, in a number of other cases, the Court found that there were un-​enumerated rights, inherent to existing rights. It must be noted that the Court has not found inherent rights when there was no connection with existing conventional rights.59 57 58 59

Golder v United Kingdom (n 55) para 34. Letsas, ‘Strasbourg’s Interpretation’ (n 38) 517. Pretty v United Kingdom App no 2346/​02 (ECtHR, 29 April 2002).

68 Fitzmaurice The Golder Judgment, however, has resulted in many profound critical comments by Gerald Fitzmaurice and Ian Sinclair. Fitzmaurice strongly objected to reading rights into the Convention that, according to him, were not expressly included, or even implied, within it.60 Sinclair contended that in fact the ECtHR paid only lip service to the vclt rule of contextual interpretation, and that it instead engaged ‘in a process of reasoning which pays scant respect to the principle of the “ordinary meaning” of the terms “in their context” ’.61 5

The Naït-​Liman Cases and Interpretation

In this Section, the manner in which the ECtHR has interpreted in particular Article 6 of the echr will be examined. It should be remembered that in the Golder case, the Court did rely extensively on the vclt (although this exercise was not devoid of criticism). The ECtHR’s approach to the rules of interpretation contained in the vclt is slightly different in both of the Naït-​Liman judgments, ie before the Court’s Second Division (2016) and the Grand Chamber (2018). From the point of view of general international law, these judgments are not very illuminating on the matter of interpretation. In earlier cases, the Court had relied extensively on the vclt, combined together with the interpretative tools singular to the Convention; see above). In the 2016 judgment there is only one mention of the vclt in relation to Article 6(1) of the Convention. The Court said as follows: Enfin, la Cour rappelle que la Convention ne doit pas être interprétée isolément mais de manière à se concilier avec les principes généraux du droit international. En vertu de l’article 31 § 3 c) de la Convention de Vienne de 1969 sur le droit des traités, l’interprétation d’un traité doit se faire en tenant compte de “toute règle pertinente de droit international applicable dans les relations entre les parties”, en particulier de celles relatives à la protection internationale des droits de l’homme.62 The need to interpret the Convention so far as possible in harmony with other rules of international law, of which it forms part, was further reiterated by 60 61 62

Golder v United Kingdom (n 55), Separate Opinion of Judge sir Gerald Fitzmaurice, para 46. Sinclair (n 8) 131–​2. Naït-​Liman (n 1) (2016) para 104.

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the Court in relation to State immunity and Article 6 echr. The Court said as follows: Elle a eu l’occasion d’affirmer, à cet égard, que des mesures prises par un État qui reflètent les principes de droit international généralement reconnus, par exemple, en matière d’immunité des États, ne sauraient en principe passer pour imposer une restriction disproportionnée au droit d’accès à un tribunal tel que garanti par l’article 6 § 1.63 This is a rather timid reference to the vclt. The Court has elected to rely on its singular interpretative features, such as: the rule of law (citing the Golder case);64 margin of appreciation in limitation of this right;65 legitimate aims,66 rather than engage in an interpretative process guided by the vclt. Interestingly, in relation to the interpretation of Article 14 of the Convention against Torture (cat), the Court examined relevant international law and practice, without, however, any reference to Article 31(3)(c); it also examined legal writings and the travaux préparatoires for the cat as well as declarations by States at the time of ratification, without, however, mention of Article 32 vclt and without giving the reasons for its recourse to the preparatory work (which in fact was inconclusive in relation to the geographical scope of the 63 64

65

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ibid para 115. “La Cour rappelle que le droit à un procès équitable, garanti par l’article 6  § 1 de la Convention, doit s’interpréter à la lumière du principe de la prééminence du droit, qui exige l’existence d’une voie judiciaire effectivepermettant de revendiquer les droits civils … Elle réaffirmeque chaque justiciable a droit à ce qu’un tribunal connaisse de toute contestation relative à ses droits et obligations de caractère civil. C’est ainsi que l’article 6 § 1 de la Convention consacre le droit à un tribunal, dont le droit d’accès, à savoir le droit de saisir un tribunal en matière civile, constitue un aspect particulier” ibid para 101. ‘La Cour rappelle ensuite sa jurisprudence selon laquelle le droit d’accès à un tribunal n’est pas absolu et se prête à des limitations implicitement admises, car il appelle de par sa nature même uneréglementation par l’État, lequel jouit à cet égard d’une certaine marge d’appréciation’, ibid para 102. ‘Quant au but poursuivi par la restriction du droit d’accès à un tribunal, la Cour estime que le refus de donner suite à l’action civile du requérant visait la bonne administration de la justice et l’effectivité des décisions judiciaires internes. Elle partage l’avis du Gouvernement selon lequel une compétence universelle, au sens civil, risquerait de créer des difficultés pratiques considérables pour les tribunaux, notamment à cause de l’administration des preuves et l’exécution de telles décisions judiciaires. La Cour n’exclut pas non plus que l’acceptation d’une compétence universelle puisse provoquer des immiscions indésirables d’un pays dans les affaires internes d’un autre. La Cour conclut donc que le refus des tribunaux suisses d’examiner le bien-​fondé de l’action du requérant poursuivait des buts légitimes au sens de la jurisprudence précitée’, ibid para 107.

70 Fitzmaurice cat). In general, the Court in its quest for the meaning of universal civil jurisdiction, of torture and other relevant matters relied on international and national case law and interpreted these notions in a broader context. In the second (2018) Naït-​Liman case the most important is the statement of the Court whereby the Court reiterates that the provisions of the Convention cannot be interpreted and applied in a vacuum. Despite its specific character as a human rights instrument, the Convention is an international treaty to be interpreted in accordance with the relevant norms and principles of public international law, and, in particular, in the light of the Vienna Convention on the Law of Treaties of 23 May 1969 (“the Vienna Convention”). Thus the Court has never considered the provisions of the Convention to be the sole framework of reference for the interpretation of the rights and freedoms enshrined therein. On the contrary, account should be taken, as indicated in Article 31 § 3 (c) of the Vienna Convention, of ‘any relevant rules of international law applicable in the relations between the parties’, and in particular the rules concerning the international protection of human rights.[footnote in the original: see, for example, Golder…]67 The Court also commented on the use of the preparatory work and correctly noted: It is thus necessary to take them into account on a subsidiary basis and with a certain restraint when interpreting the terms of a treaty (see, to similar effect, the prudence expressed by the icj in the Case of Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and Admissibility. [footnote in the original: judgment, icj Reports 1995, § 41]68 Finally, the Court hinted (without explicit mention) at evolutionary interpretation where it said: However, it does not seem unreasonable for a State which establishes a forum of necessity to make its exercise conditional on the existence of certain connecting factors with that State, to be determined by it in compliance with international law and without exceeding the margin of 67 68

Naït Liman (GC) (n 1) para 174. ibid para 192.

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appreciation afforded to the State under the Convention. Nonetheless, given the dynamic nature of this area, the Court does not rule out the possibility of developments in the future . …69 The Court relied in this case on the notions of margin of appreciation, consensus, legitimate aims, and effectiveness (of the access to courts). 6

Conclusions

What are the lessons learned from this case in relation to the interpretation and the vclt? In the view of the present author, this is a very unusual case (both the 2016 and 2018 Judgments). Against the background of the vast case law of the ECtHR (such as the Witold Litwa v Poland case), in which the provisions of the vclt concerning interpretation were followed, even if subject to criticism, in a very orderly fashion, the Naït-​Liman case stands out as an exception. The Court, in both Judgments, referred to the vclt, but in a very selective manner –​without an orderly interpretative process. It is true that the Vienna rule does not include a stringent structure of interpretation. However, the textual method of interpretation is usually the starting point. The ECtHR, however, appears to favour systemic interpretation included in Article 31(3)(c). It is a very curious approach, which may or may not evolve further.

Bibliography

Arato J, ‘Subsequent Practice and Evolutive Interpretation: Techniques of a Treaty Interpretation Over Time and Their Diverse Consequences’ (2010) 9 LPICT 445. Benvenisti E, ‘Margin of Appreciation, Consensus and Universal Standards’ (1999) 32 J L Politics 843. Bjorge E, The Evolutionary Interpretation of Treaties (oup 2014). Buffard I and Zemanek C, ‘ “The Object and Purpose of a Treaty”: An Enigma?’ (1998) 3 ARIEL 311. Caflisch L and Cançado Trindade AA, ‘Les conventions américaine et européenne des droits de l‘homme et le droit international général’ (2004) 108 RGDIP 5. Çali B, ‘Specialized Rules of Treaty Interpretation: Human Rights’, in D Hollis (ed) The Oxford Guide to Treaties (oup 2012) 525.

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ibid paras 219–​220.

72 Fitzmaurice Craven M, ‘Legal Differentiation and the Concept of Human Rights Treaty in International Law’ (2000) 11 EJIL 489. Djeffal C, Static and Evolutive Treaty Interpretation (cup 2016). Fitzmaurice G, ‘The Law and Procedure of the International Court of Justice: Treaty Interpretation and Certain Other Treaty Points’ (1951) 28 British Ybk Intl L 1. Fitzmaurice G, ‘The Law and Procedure of the International Court of Justice 1951–​ 54: Treaty Interpretation and Other Treaty Points’ (1957) 33 British Ybk Intl L 203. Fitzmaurice M, ‘Interpretation of Human Rights Treaties’ in D Shelton (ed), The Oxford Handbook of International Human Rights Law (oup 2015) 739. Forowicz M, The Reception of International Law in the European Court of Human Rights (oup 2010). Forowicz M, ‘Factors Influencing the Reception of International Law in the ECtHR’s case law: An Overview’, in M Andenas and E Bjorge (eds) A Farewell to Fragmentation. Reassertion and Convergence in International Law (cup 2015) 191. Gardiner R, Treaty Interpretation (2nd edn, oup 2015). Greenwood C, ‘Jurisdiction, NATO and the Kosovo Conflict’ in P Capps, M Evans and S Konstadinidis (eds), Asserting Jurisdiction: International and European Legal Perspectives (Hart Publishing 2013) 145. Letsas G, A Theory of Interpretation of the European Convention on Human Rights (oup 2007). Letsas G, ‘Strasbourg’s Interpretation Ethics:  Lessons for the International Lawyer’ (2010) 21 EJIL 509. Merkouris P, Article 31(3)(c) VCLT and the Principle of Systemic Integration. Normative Shadows in Plato’s Cave (Brill Nijhoff 2015). Pauwelyn J and Elsig M, ‘The Politics of Treaty Interpretation’, in J Dunoff and M Pollack (eds), Interdisciplinary Perspectives on International Law and International Relations (cup 2013) 445. Rietiker D, ‘The Principle of “Effectiveness” in the Recent Jurisprudence of the European Court of Human Rights. Its Different Dimensions and its Consistency with Public International Law –​No Need for the Treaty Sui Generis’ (2010) 79 Nordic J Intl Law 245. Saul M, ‘The European Court of Human Rights’ Margin of Appreciation and the Processes of National Parliaments’ (2015) 15 Human Rights L Rev 745. Schlütter B, ‘Aspects of Human Rights Interpretation by the UN Treaty Bodies’, in H Keller and G Ulfstein (eds), Human Rights and Treaty Bodies: Law and Legitimacy (cup 2012) 261. Shany Y, ‘All Roads Lead to Strasbourg? Application of the Margin of Appreciation Doctrine by the European Court of Human Rights and the UN Human Rights Committee’ (2018) 9 J Intl Dispute Settlement 180.

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Simma B, ‘From Bilateralism to Community Interests’ (1994) 250 Recueil des Cours de l’Académie de Droit International 317. Sinclair I, The Vienna Convention on the Law of Treaties (2nd edn, Manchester UP 1984). Waibel M, ‘Demystifying the Art of Interpretation’ (2012) 22 EJIL 571. Weiler JHH, ‘Prolegomena in a Meso-​Theory of Treaty Interpretation at the Turn of the Century’ (iii International Legal Theory Colloquium, Interpretation and Judgment in International Law, New York 2008) on file with the author. .

chapter 4

Public International Law Constraints on the Exercise of Adjudicatory Jurisdiction in Civil Matters Lucas Roorda and Cedric Ryngaert 1

Introduction

In Naït-​Liman, the Grand Chamber of the European Court of Human Rights (ECtHR) implied that public international law is relevant when determining the permissibility of the exercise of adjudicatory jurisdiction in civil matters,1 as well as when determining the scope of the margin of appreciation enjoyed by forum States when deciding whether to open up their courts to tort claims with weak ties to the forum.2 This elicits the question whether, as a general matter, public international law governs the exercise of jurisdiction in civil matters, ie in disputes between private persons, typically concerning torts. Jurisdiction in civil matters is normally governed by private international law. Jurisdictional grounds in private international law do not fully coincide with the classic jurisdictional heads in public international law. In fact, they are far more diverse.3 Arguably, this is so because jurisdiction in private 1 Naït-​Liman v Switzerland App no 51357/​07 (ECtHR, GC, 15 March 2018) para 127: ‘[A]‌s a subsidiary consideration, the Grand Chamber accepts that a State cannot ignore the potential diplomatic difficulties entailed by recognition of civil jurisdiction in the conditions proposed by the applicant’. 2 ibid paras 176–​181 discerning ‘two concepts of international law that are relevant for the present case: the forum of necessity and universal jurisdiction’, examining ‘whether the Swiss authorities were legally bound to open their courts to the applicant, by virtue either of universal civil jurisdiction for torture, or of the forum of necessity’, the conclusions of which ‘will serve to determine the scope of the margin of appreciation enjoyed by those authorities in this case’. 3 eg the multiple jurisdictional principles that are codified in Regulation (EU) 1215/​2012 of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Recast) [2012] OJ L 351/​1. Note that this Regulation is not exhaustive of the possible grounds of jurisdiction under private international law. The Regulation notably does not list forum of necessity, ie the jurisdictional ground at issue in Naït-​Liman.

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004408579_006

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international law –​the rules of which, for that matter, are largely although not exclusively laid down in domestic law –​serves a purpose that is different from the purpose of jurisdiction in public international law. Both are concerned with the allocation of regulatory authority, but the purpose of the latter is mainly to prevent one State from encroaching on the sovereignty of another (ie interfering in its internal affairs), while the purposes of the former are to provide predictability to the variegated legal relationships between private persons, do justice to their legitimate interests, and offer due process. In light of these different goals, jurisdiction in respectively private and public international law may seem to be worlds apart. States may perhaps enter into treaties governed by international law to approximate or harmonize jurisdictional principles in private international law,4 but the public international law form used for such approximation or harmonization may not change the fundamental private international law character of the jurisdictional principles laid down in the treaties. As jurisdiction in private international law mostly engages private interests rather than State interests, it could be argued that public international law, which (only) accommodates State interests, does not and cannot constrain or otherwise impact private international law-​based adjudicatory jurisdiction. The latter position appears to be taken by the drafters of the recent Fourth Restatement of US Foreign Relations Law, which is likely to be influential, also outside the United States (as discussed in Section 3). In this contribution, we argue that the Restatement’s drafters are misguided. The exercise of adjudicatory jurisdiction amounts to a projection of State regulatory power, and is accordingly in principle, although not necessarily in practice, subject to sovereignty-​based public international law constraints (Section 4). We go on to illustrate our general position with the specific case of tort litigation regarding human rights abuses committed by transnational corporations (Section 5). Such litigation straddles the public/​private divide par excellence and engages both private and public (international law) concerns, making it a fascinating field to examine the applicability of public international law constraints on the exercise of adjudicatory jurisdiction. In view of the thrust of this volume, however, we start with a more detailed discussion of what triggered our inquiry in the first place: the position taken on the matter by the European Court of Human Rights in Naït-​Liman (Section 2). Section 6 concludes.

4 See eg the various Hague conventions on private international law, available at (last accessed 31 December 2019).

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The Position of the European Court of Human Rights in Naït-​Liman

In Naït-​Liman, the Grand Chamber of the European Court of Human Rights implied that public international law informs the assessment of the legality of the exercise of adjudicatory jurisdiction in civil law matters. The Grand Chamber considered that, in substance, the applicant’s arguments regarding the private international law jurisdictional ground of forum of necessity ‘come very close’ to the public international law approach of universal jurisdiction.5 Therefore, it went on to review Swiss private international law and practice regarding forum of necessity in light of public international law. In particular, the Grand Chamber considered it ‘appropriate to examine whether Switzerland was bound to recognise universal civil jurisdiction for acts of torture by virtue of an international custom, or of treaty law’.6 These are formal sources of (public) international law which, as the Grand Chamber reminded, are set out in Article 38 of the Statute of the International Court of Justice.7 Eventually, the Grand Chamber concluded that neither customary nor treaty (public international) law obliged ‘the Swiss authorities to open their courts to the applicant pursuant to universal civil jurisdiction for acts of torture’.8 It also concluded that there is no ‘international custom rule enshrining the concept of forum of necessity’,9 or an ‘international treaty obligation obliging the States to provide for a forum of necessity’.10 Regardless of the specificities of Naït-​Liman, the important takeaway of the Grand Chamber’s reasoning is that public international law is relevant to private international law jurisdiction in two ways: (1) public international law can impose obligations on States to establish adjudicatory jurisdiction (‘open up their courts’) in private law (tort) cases, and (2) public international law can constrain the exercise of adjudicatory jurisdiction. The first issue was the centre of Naït-​Liman, and pertained to whether Article 14 of the UN Convention against Torture, or parallel customary international law, obliges States to exercise universal civil jurisdiction over torture, ie the wrongful act at issue

5

Naït-​Liman (GC) (n 1) para 176. The Court appears to narrow the applicant’s argument regarding restricted forum of necessity (based on a nexus to the forum State) to an argument regarding unrestricted forum of necessity (not based on a nexus to the forum State). Only the unrestricted form of forum of necessity comes very close to universal jurisdiction. 6 ibid. 7 ibid para 182. 8 ibid para 198. 9 ibid para 201. 10 ibid para 202.

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in Naït-​Liman.11 This issue has been addressed at length in literature and in practice.12 The second question –​whether public international law constrains rather than mandates the exercise of adjudicatory jurisdiction in civil matters  –​is only obliquely referenced in Naït-​Liman. Only ‘as a subsidiary consideration’, the Grand Chamber accepted ‘that a State cannot ignore the potential diplomatic difficulties entailed by recognition of civil jurisdiction in the conditions proposed by the applicant’.13 Here, the Grand Chamber seems to refer to foreign State protests which the exercise of adjudicatory jurisdiction in civil matters by the forum State could engender. Such protests play an important role in determining, under public international law, the lawfulness of jurisdictional assertions by States.14 At the very least, this consideration speaks to foreign State interests that are possibly engaged by the forum State’s exercise of adjudicatory jurisdiction, and which may amount to unlawful interference in the internal affairs of foreign States. This risk of interference is also cited in the Court’s first instance judgment in Naït-​Liman, in which it held that ‘la Cour n’exclut pas non plus que l’acceptation d’une compétence universelle puisse provoquer des immiscions indésirables d’un pays dans les affaires internes d’un autre’.15 This risk may obviously render the exercise of civil jurisdiction subject to public international law constraints –​although, as argued below, in practice, foreign States rarely protest. Ultimately, however, the ECtHR did not have to see through the argument of public international law constraints, as the question before the Court was not whether Switzerland had jurisdictionally overreached, but rather whether it had underreached, ie whether its failure to exercise adjudicatory jurisdiction in the case fell short of potential international obligations to exercise such jurisdiction (it did not). Moreover, in any event, the Court, as a human rights court, 11 12

13 14 15

The Grand Chamber in Naït-​Liman answers the question in the negative (there is no such obligation), relying on treaty interpretation. See Naït-​Liman (GC) (n 1) paras 182–​198. See UN Committee against Torture, ‘General Comment no 3’ (13 December 2012)  UN Doc CAT/​C/​GC/​3 taking the view that Article 14 of the Convention against Torture does ground such an obligation. See for scholarly discussions PD Mora, ‘The Legality of Civil Jurisdiction over Torture under the Universal Principle (2010) 52 German Ybk Intl L 367; K Parlett, ‘Universal Civil Jurisdiction for Torture’ (2007) 4 Eur Human Rights L Rev 385; CK Hall, ‘The Duty of States Parties to the Convention against Torture to Provide Procedures Permitting Victims to Recover Reparations for Torture Committed Abroad’ (2007) 18 EJIL 921. Naït-​Liman (GC) (n 1) para 127. cf M Akehurst ‘Jurisdiction in International Law’ (1972) 46 British Ybk Intl L 145, 176. Naït-​Liman v Switzerland App no 51357/​07 (ECtHR, 21 June 2016) para. 107. This judgment is only available in French.

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hearing violations of human rights law rather than of public international law, will therefore only indirectly review jurisdictional action or inaction of States in light of public international law-​based jurisdictional constraints.16 3

The Fourth Restatement of US Foreign Relations Law: the Contested Absence of Public International Law Constraints

For reasons related to its competency as a human rights court, rather than a court with jurisdiction over violations of public international law, the ECtHR may so far not have fully engaged yet with potential public international law constraints on the exercise of adjudicatory jurisdiction. However, this does not detract from the principled epistemic relevance of the existence of such constraints in the context of the relationship between private and public international law. The discussion on the existence of such constraints has recently received a boost as a result of the adoption of the Fourth Restatement of US Foreign Relations Law by the American Law Institute.17 The Fourth Restatement 16

17

Thus, in Naït-​Liman, the applicant invoked Article 6 echr, although backed up by jurisdictional arguments drawn from public international law. See for an ECtHR review of allegations of State jurisdictional overreach in light of the echr: Jorgic v Germany App no 74613/​01 (ECtHR, 12 July 2007). In this case, the applicant, Jorgic, a Bosnian Serb who had been convicted for genocide by German courts acting under the universality principle, complained with the ECtHR that his conviction was in violation of the right to liberty, the right to be heard by a tribunal established by law, and/​or the legality principle which prohibits punishment without law, laid down in Articles 5–​7 echr. Public international law constraints were however considered to inform the determination of whether the State has violated these provisions. Thus, Jorgic alleged that German courts’ wide interpretation of that crime had no basis in German or public international law. When reviewing the conviction in light of the echr, the Court noted that the German courts’ interpretation of the rules of public international law was not arbitrary, and that the application could reasonably have foreseen that he risked being charged with and convicted of genocide for the acts he had committed in light of the fact that several authorities had interpreted the offence of genocide in a wider way. Note, however, that the Court’s practice in jurisdictional immunity cases shows a ready willingness of the Court to engage with the public international law regime of jurisdictional immunity. See Ph Webb, ‘A Moving Target: the Approach of the Strasbourg Court to Immunity’ and R Pavoni, ‘The Myth of the Customary Nature of the United Nations Convention on State Immunity: Does the End Justify the Means?’, both in A van Aaken, I Motoc (eds), The European Convention of Human Rights and General International Law (oup 2018) 251 and 264 respectively. American Law Institute, Restatement of the Law Fourth –​The Foreign Relations Law of the United States (American Law Institute 2018).

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controversially posits that public international law does not constrain the exercise of adjudicatory jurisdiction. The reporters’ notes provide that ‘[w]‌ith the exception of various forms of immunity, however, modern customary international law generally does not impose limits on jurisdiction to adjudicate’.18 The co-​reporters for the jurisdictional sections of the Restatement have explained this rule in a separate post, in which they argue that ‘[s]tates often limit their jurisdiction to a greater extent than international law requires’ but ‘unless such limits result from a sense of international legal obligation, they reflect international comity rather than customary international law’.19 They go on to state that ‘[m]any states exercise personal jurisdiction on bases that other states consider exorbitant’, but that ‘states have not, however, protested such exercises of personal jurisdiction as violations of customary international law’, and instead ‘have simply refused to recognize and enforce the judgments rendered in such cases’.20 While admitting that ‘states generally do not exercise personal jurisdiction without a basis for doing so that is widely recognized by other states’, they point out that ‘the fact that many states maintain the right to exercise jurisdiction on other bases, and the fact that other states do not protest such exercises as violations of customary international law, forecloses the conclusion that the limits generally observed are followed out of a sense of legal obligation’.21 This position is echoed by Paul Mora, who, reflecting on the ECtHR’s judgment in Naït-​Liman, argues that the Court confused separate principles of both public and private international law when dealing with universal civil jurisdiction and forum of necessity. According to him, ‘public international law rules on prescriptive jurisdiction do not in practice regulate the jurisdiction of municipal courts in civil and commercial matters under the conflict of laws’.22 On this view, there may well be extraneous limitations to the exercise of adjudicatory jurisdiction in civil matters, but these do not flow from public international

18 19

ibid Section 422, reporters’ note 1. W Dodge, A  Roberts and P Stephan, ‘Jurisdiction to Adjudicate Under Customary International Law’, Opinio Juris, 11 September 2018, available at (last accessed 31 December 2019). 20 ibid. 21 ibid. As an element ex autoritate they add they ‘had the benefit of counsel from a wide range of advisers (including foreign advisers) with deep experience in customary international law and of vigorous debates on many issues’. 22 PD Mora, ‘Universal Civil Jurisdiction and Forum Necessitatis: The Confusion of Public and Private International Law in Naït-​Liman v. Switzerland’ (2018) 65 Netherlands Intl L Rev 165.

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law but rather from non-​binding comity, reasonableness or due process ­considerations.23 These positions constitute a departure from the influential Third Restatement of US Foreign Relations Law, which did appear to posit public international law constraints on the exercise of adjudicatory jurisdiction. The Third Restatement stated that ‘[t]‌he exercise of jurisdiction by courts of one state that affects interests of other states is now generally considered as coming within the domain of customary international law and international agreement’.24 More specifically, it considered the exercise of ‘tag’ jurisdiction based on the service of process to a person with only a transitory presence in the jurisdiction, as ‘not generally acceptable under international law’.25 Relying on the Third Restatement, Austen Parrish thus rejected the approach of the Fourth Restatement; he cited international practice as well as US judicial decisions which arguably evidence the existence of public international law constraints on the exercise of adjudicatory jurisdiction (in the US also called ‘judicial’ or ‘personal’ jurisdiction), as a matter of binding law rather than mere comity.26 Alex Mills, one of the pre-​eminent specialists on the relationship between public and private international law, took the resembling view that it ‘is a matter of great regret that the forthcoming Restatement (Fourth) (…) appears to have departed from the approach previously recognised under US law, and suggests that customary international law does not constrain the exercise of adjudicative jurisdiction at all’.27 Mills pointed out in this respect that 23

24 25 26

27

Restatement (Fourth) of the Foreign Relations Law of the United States: Jurisdiction § 302 comment d: ‘Both general and specific jurisdiction are subject to the reasonableness requirements of the Due Process Clauses. Because the contacts required for general jurisdiction tend to satisfy these requirements, however, reasonableness typically functions as an independent check on personal jurisdiction only in specific jurisdiction cases’. See from a US perspective on the moderating influence of domestic doctrines, such as reasonableness, venue transfer, and forum non conveniens, on the expanded reach of the US national-​contacts test: W Dodge and S Dodson, ‘Personal Jurisdiction and Aliens’ (2018) 116 Michigan L Rev 1205. American Law Institute, Restatement of the Law Third – The Foreign Relations Law of the United States (American Law Institute 1987) Section 421, reporters’ note 1. ibid Section 421, comment e. A Parrish, ‘Judicial Jurisdiction: The Transnational Difference’ (2019) 59 Virginia J Intl L; see also Id, ‘Remaking International Law? Personal Jurisdiction and the Fourth Restatement of the Foreign Relations Law’, Opinio Juris, 6 September 2018 available at (last accessed 31 December 2019). A Mills, ‘Private Interests and Private Law Regulation in Public International Law Jurisdiction’, in S Allen, D Costelloe, M Fitzmaurice, P Gragl, E Guntrip (eds), Oxford Handbook on Jurisdiction in International Law (oup 2019) 330.

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while ‘the range of connecting factors on which States rely in the context of private law disputes is broader than those commonly recognised in criminal law’, States do not assert jurisdiction in the absence of any connection to the dispute,28 thus implying that the requirement of ‘connection’ is a constraint under public international law. Others are more agnostic as to whether the Fourth Restatement’s approach is valid or not. This is exemplified by Ralph Michaels, who, commenting on the Restatement, argued that the question of public international law limits to adjudicatory jurisdiction ‘remains open’ and calling for ‘more work (…) to be done before we find consensus on this question’,29 although going by the text of his reaction he was leaning towards the position that public international law constraints do exist.30 By the same token, French and Ruiz Abou-​Nigm recently admitted that most commentators may apply the draft Convention on Jurisdiction with Respect to Crime31 equally to the scope of a State’s civil jurisdiction, but added that they do so ‘almost without much thought’.32 It does not help that two of the main theorists of jurisdiction contradict each other on the issue: Mann implied that any assertion of jurisdiction, including civil jurisdiction, is limited by rules of international law,33 whereas Akehurst harboured strong doubts in this respect.34 Ultimately, however, Mann and Akehurst did not engage in-​depth with the issue. 4

The (Potential) Existence of Public International Law Constraints

In our view, the position of the American Law Institute as laid down in the Fourth Restatement is misguided. Instead, the correct position should be that 28 29 30

31 32 33 34

ibid (n 29). R Michaels, ‘Is Adjudicatory Jurisdiction a Category of Public International Law?’,Opinio Juris, 20 September 2018 < http://​opiniojuris.org/​2018/​09/​20/​is-​adjudicatory-​jurisdiction-​ a-​category-​of-​public-​international-​law/​> (last accessed 31December 2019). Notably, in the sentence preceding his agnostic conclusion, Michaels (n 29) writes: ‘the fact that every existing jurisdictional provision appears to rest on some kind of connection to the forum, however detached, might be more plausibly interpreted as evidence for a state practice and opinio iuris in favor of some kind of genuine link’. Draft Convention on Jurisdiction with Respect to Crime (1935) 29 ajil 439. D French and V Ruiz Abou-​ Nigm, ‘Jurisdiction:  Betwixt Unilateralism and Global Coordination’, in V Ruiz Abou-​Nigm, K McCall-​Smith, D French (eds), Linkages and Boundaries in Private and Public International Law (Hart 2018) 84. FA Mann, ‘The Doctrine of Jurisdiction in International Law’ (1964) 111 Recueil des Cours de l’Académie de Droit International 14, esp. 17, 73–​81. Akehurst (n 14) 177, 182.

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the exercise of adjudicatory jurisdiction in civil matters is potentially normatively limited by public international law, even if in practice those limits are rarely engaged. This is so for the following reasons. The point of departure is that adjudicatory jurisdiction is exercised by a State actor (in this case: a court), just like jurisdiction in criminal or regulatory matters. Thus, it amounts to a projection of regulatory authority in the transnational domain.35 Put differently, it is an exercise of State prescriptive jurisdiction and thus subject to the rules of jurisdiction under public international law. At the end of the day, public international law is blind to the domestic characterization of an exercise of State authority as penal, regulatory, or private. What matters is whether the assertion risks trampling on another State’s sovereignty, by interfering in its own regulatory environment, and thus violating the principle of sovereign equality.36 It is recalled in this respect that private tort claims may have a strong regulatory connotation. Tortious conduct can amount to criminal conduct, and it depends on the legal system whether certain conduct is classified as either or both. Criminal prosecution and tort litigation both present an ex post perspective on conduct, but contribute to ex ante norm setting as well. Moreover, even when torts do not coincide with norms of criminal law, the substantive legal basis can often be found in norms of public law, eg environmental regulations, health and safety standards in the workplace or rules of labour law. If States are concerned with the effects of foreign authority over their subjects,37 it may not matter whether that authority

35

36

37

See also the arguments made by Belgium in Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (Belgium v Switzerland) (Application Instituting Proceedings) General List No 145 [2010] icj 1, the only application in which the icj was requested to pronounce itself on the legality under public international law of private international law jurisdiction. See notably Application, 13 submitting that Switzerland’s failure to recognize and give effect to a judgment of a Belgian court and to halt proceedings before Swiss courts was ‘a breach of the rules of general international law governing the exercise by States of their authority, in particular in judicial matters, according to which State authority of any kind must be exercised reasonably’. See also A Mills, ‘Connecting Public and Private International Law’ in Ruiz Abou-​Nigm, K McCall-​Smith, D French (eds), Linkages and Boundaries (n 32) 13, stating: ‘Rules of private law are exercises of “public” governmental authority as much as rules of criminal law, and they are ultimately sanctioned through coercive judicial and executive powers. (…) the distinction between public and private law has long been criticized as a legal artifice, and in any case does not appear materially relevant to the question of whether state regulatory power is implicated’. In that respect, one may be reminded that the practice of courts can contribute to the development of State practice for the purposes of customary international law. See A Mills, ‘Rethinking Jurisdiction in International Law’ (2014) 81 British Ybk Intl L 187, 230.

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is exercised through private or public law instruments.38 What also matters is that at one point, courts, whether acting in criminal or civil matters, may order the arrest of an individual, execution of a verdict or seizure of assets, thereby becoming in any event bound by the public international law limits on enforcement jurisdiction.39 The fact that foreign States do not usually protest the exercise of adjudicatory jurisdiction does not mean that they do not consider public international law to be irrelevant to such jurisdiction. Rather, it may suggest that adjudicatory jurisdiction as it is currently exercised is largely in keeping with public international law, in particular on the ground that such assertions are based on a sufficiently strong connection with the forum State. Only exceptionally may the exercise of adjudicatory jurisdiction be in tension with public international law constraints and possibly lead to international protest. States have notably protested what they consider exorbitant assertions of jurisdiction, such as tag jurisdiction (personal jurisdiction based on the temporary presence of the defendant).40 Also, rules have been adopted that allow States to refuse recognition of civil judgments rendered on exorbitant jurisdictional bases (although formally this does not amount to ‘protest’).41 Against the background of Naït-​Liman, assertions of universal civil jurisdiction, ie jurisdiction without any connection to the forum, may be cited as potentially problematic from a public international law perspective. However, it remains that pure universal civil jurisdiction is in practice not exercised.42 Even assertions of jurisdiction under the US Alien Tort Statute (ats),43 sometimes cited as an example of a universal civil jurisdiction statute,44 are based 38 39 40 41 42

43 44

J Hill, ‘The Exercise of Jurisdiction in Private International Law’, in P Capps, M Evans, S Konstadinidis (eds), Asserting Jurisdiction:  International and European Perspectives (Hart 2003). See C Staker, ‘Jurisdiction’, in M Evans (ed), International Law (5th edn, oup 2018) 312–​313; Mills, ‘Rethinking Jurisdiction’ (n 37) 195. Burnham v Superior Court, 495 US 604 (1990). See Mills, ‘Rethinking Jurisdiction’ (n 37) 234. This may in itself already give rise to the conclusion that such jurisdiction is unlawful under public international law given the absence of relevant positive State practice. Cf AG Jain, ‘Universal Civil Jurisdiction in International Law’ (2016) 55 Indian J Intl L 209. See for an argument in favour of legality C Ryngaert, ‘Universal Tort Jurisdiction over Gross Human Rights Violations’ (2007) 38 Netherlands Ybk Intl L 3. 28 USC § 1350. eg G Nolte, ‘Universal Jurisdiction in the Area of Private Law: the Alien Tort Claims Act‘, in C Tomuschat and J Thouvenin (eds), The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes (Nijhoff 2006) 373; PD Mora, ‘The Alien Tort Statute after “Kiobel”:  the Possibility for Unlawful Assertions of Universal Civil

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on a connection with the US. This is surely the case after the US Supreme Court’s judgment in Kiobel, which required that the claim ‘touch and concern the United States’, and its later judgment in Jesner, which precluded the ATS from applying to foreign corporations.45 Moreover, any assertion of subject-​ matter jurisdiction –​such as under the ATS –​in the US still needs to satisfy ordinary requirements of personal jurisdiction. In practice, these requirements mean that a party needs to have minimum contacts with the US,46 or even be ‘essentially at home’ in the US.47 Additionally, even if States were to exercise universal civil jurisdiction in the absence of substantial contacts with the forum, it could still be argued that the exercise of universal civil jurisdiction is only unlawful in case it is exercised over acts that are not amenable to universal criminal jurisdiction, ie acts that do not rise to the level of international crimes or gross human rights violations. Arguably, the commission of such acts provides in itself a connection to every single State. This approach was taken by the European Commission in its amicus curiae brief in Kiobel as well as Justice Breyer’s Concurring Opinion in that case.48 The Commission thus recognized the potential existence of public international law constraints on the exercise of adjudicatory jurisdiction –​even when the possibility of actual enforcement of such jurisdiction was only remote –​while nevertheless pointing to limited authorization under public international law. Ultimately, when taking the relative absence of foreign protest and the requirement of substantial connection into account, one is inclined to conclude that most assertions of adjudicatory jurisdiction are currently compatible with public international law. After all, public international law only draws the outer boundaries of jurisdictional permissibility. However, this does not gainsay the possibility that, in the future, States may perhaps change their opinion on the legality of particular instances of adjudicatory jurisdiction by abstaining from

45 46 47 48

Jurisdiction Still Remains’ (2014) 63 ICLQ 699; J Ku, ‘Kiobel and the Surprising Death of Universal Jurisdiction under the Alien Tort Statute’ (2013) 107 AJIL 835; G Barrie, ‘Moving towards Universal Jurisdiction?: United States Courts and the Alien Tort Statute’ (2010) 35 South African Ybk Intl L 180. Kiobel v Royal Dutch Petroleum Co, 569 US 108 (2013); Jesner v Arab Bank, PLC, no 16-​499, 584 US _​_​_​ (2018). International Shoe Co v Washington, 326 US 310 (1945). Goodyear Dunlop Tires Operations SA v Brown, 564 US 915 (2011). Kiobel v Royal Dutch Petroleum n 45 (Amicus curiae brief of the European Commission on behalf of the European Union in Support of Neither Party) (13 June 2012) available at (last accessed 31 December 2019); Kiobel v Royal Dutch Petroleum (n 45), concurring opinion Breyer J.

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exercising such jurisdiction or by protesting jurisdictional assertions by other States. When doing so, they may contribute to clarifying prohibitive norms of customary international law. All of this is not to say that the rules of jurisdiction in public and private international law function in the same way, or that assertions of jurisdiction under either discipline are assessed similarly by foreign States. The respective purposes of these fields of law are too different to argue that. Moreover, the principle of party autonomy, though not unlimited, allows for deviation of jurisdictional principles that is not possible in public international law.49 The contrary position however, namely that jurisdiction in private international law operating completely separately from the limits set by public international law, is unconvincing. Assertions of jurisdiction in private international law do interact with doctrines of territorial sovereignty as recognized under public international law. In fact, some authors argue that after having started from common roots and being conceptually separated by competing currents of globalization and nationalization, public and private international law are converging once more.50 A re-​internationalization of private international law may be taking place, as an international framework with a more systemic perspective is emerging that represents not just fairness to parties, but public interests and interests of the international community as well.51 This has consequences for jurisdiction under private international law. The recognition of a systemic, public international law perspective submits the practice of courts in private international law to not just territorial and personal limits informed by private party interests, but also to the balancing of State policies and State interests. 5

Public International Law Constraints on the Exercise of Adjudicatory Jurisdiction over Business and Human Rights Tort Claims

In the specific part of this contribution, we illustrate the abovementioned general considerations regarding the absence or existence of public international

49 50

51

A Mills, Party Autonomy in Private International Law (cup 2018). See in particular J Bomhoff, ‘The Reach of Rights:  “The Foreign” and “The Private” in Conflict-​of-​Laws, State-​Action, and Fundamental-​Rights Cases with Foreign Elements’ (2008) 71 L Contemporary P 39; H Muir Watt, ‘Private International Law Beyond the Schism’ (2011) 2 Transnl L Theory 347. See Mills, ‘Rethinking Jurisdiction’ (n 37) 211–​212. See on global coordination also French and Ruiz Abou-​Nigm, ‘Jurisdiction’ (n 32).

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law constraints on the exercise of adjudicatory jurisdiction in civil (tort) matters by engaging with the exercise of adjudicatory (home State) jurisdiction over multinational corporations implicated in extraterritorial human rights abuses. Our choice to focus on this manifestation of adjudicatory jurisdiction should be seen against the backdrop of the global governance dimension of transnational corporate regulation. It is in particular informed by the nature of tort claims as private claims pitting individuals against (multinational) corporations involved in overseas abuses of public international (human rights) law.52 Such claims stand at the intersection of the public and the private, and can be productively engaged with when donning a jurisdictional lens that is coloured by both private and public international law. These cases demonstrate that the exercise of such jurisdiction may raise sovereignty concerns and may thus be constrained by public international law. Indeed, host States, and in practice more often by multinational corporations on behalf of the host State,53 have raised sovereignty concerns against the exercise of jurisdiction by civil courts in third States. Moreover, concerns over host State sovereignty are an important argument for home States not to lower barriers for such cases to be adjudicated in their courts.54 Those objections may not be justified, however: we submit that the argument of non-​ intervention is not convincing given the historical and economic reality of host State sovereignty as well as the actual practice of host States. Nevertheless, this discussion needs to be engaged in, even in relation to what is strictly speaking ‘purely’ private litigation. Technically speaking, claims filed by individuals against corporations are governed by private international law rules of adjudicatory jurisdiction, 52

53

54

Note that, as is discussed below, not all of these cases are expressly classified as ‘human rights’ cases due to the fact that human rights law is often not actionable in civil suits against other private actors. Nevertheless, each of these cases has clear implications for human rights, which is why they are often labelled as ‘human rights’ cases against multinational corporations. See on multinational corporations’ reliance on the host State’s territorial sovereignty as a public international law argument against the exercise of adjudicatory jurisdiction in civil matters, from a critical geography: P Liste, ‘Transnational Human Rights Litigation and Territorialised Knowledge: Kiobel and the “Politics of Space”’ (2014) 5 Transnl L Theory 1; Id, ‘Geographical Knowledge at Work:  Human Rights Litigation and Transnational Territoriality’ (2016) 22 Eur J Intl Rel 217. Even while they are requested to do so in international instruments; see for instance Operational Principle 26 of the UN Guiding Principles on Business and Human Rights, 21 March 2011, UN Doc A/​HRC/​17/​31 or in Council of Europe Recommendation CM/​ Rec(2016)3 of the Committee of Ministers to Member States (2016) on Business and Human Rights.

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which are different per legal system and may or may not correspond to jurisdictional principles of public international law. One such rule is the domicile principle, the basis for home State jurisdiction in the European Union.55 This is a principle that is not a classic ground of public international law jurisdiction, even if it could be traced back to the nationality and territoriality principles.56 In conjunction with national rules on joining cases, it has been used as a jurisdictional ‘anchor’ to litigate against both EU-​based parent companies of multinational corporations, and their foreign-​based subsidiaries.57 While private international law rules govern adjudicatory jurisdiction in business and human rights cases, they may nevertheless raise acute public international law concerns to the extent that they adversely affect the regulatory space of host States. Host States are the States in which the corporation invested, and which for some reason may not be able or willing to regulate the corporation’s activities on the basis of the territoriality principle, ie the bedrock principle of the sovereignty-​based public international law of jurisdiction. In particular, the host State may wish to maintain low regulatory standards or weak enforcement practices in order to attract foreign direct investment. Host States may have concerns that the sovereign economic policy which they wish to implement on their territory is displaced when foreign States, such as the home State of the corporation (ie the State where the corporation is domiciled), open up their courts to overseas tort claims. Such sovereignty concerns may render adjudicatory jurisdiction amenable to public international law constraints. On closer inspection, when unpacking what sovereignty means for host States, the concern that the exercise of adjudicatory jurisdiction by home States violates the public international law principle of non-​intervention is far less convincing. A critical look at territorial sovereignty reveals that the concept is not a goal in and of itself. The territorially defined State is the organizational structure built to effectuate its sovereignty, and is, accordingly, only 55 56

57

See the general provision of jurisdiction in EU Regulation No 1215/​2012 (n 3), Article 4(1): ‘[P]‌ersons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State’. Cf Mills, ‘Private interests’ (n 27) 17: ‘regulating a party based on their domicile or residence is not a matter of regulating the person (based on nationality) or the events (based on territoriality), but rather based on the territorial connections of the person, fusing traditional conceptions of state authority in international law’. See, for a more detailed discussion of how this is done in the EU, L Roorda, ‘Adjudicate This!  –​Foreign Direct Liability and Civil Jurisdiction in Europe’, in A  Bonfanti (ed), Business and Human Rights in Europe. International Law Challenges (Routledge 2018) 195.

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a means to an end, an ordering mechanism to ensure the self-​governance of peoples.58 Thus, the main question is whether a particular exercise of adjudicatory jurisdiction by home States over multinationals corporations operating on host State territory respects, strengthens or harms the sovereignty of the host State, as protected by public international law. It is important to realize in this respect that ‘sovereignty’ may mean something different for the developing States that are typically investment host States, than it does for most Western States. The conception of Western statehood and territorial sovereignty were coinciding developments:  the concepts arose out of each other. Subsequent limits imposed on the territorial sovereignty of Western States were a product of their own sovereign choices, whether it was accession to human rights treaties or participation in global free trade regimes.59 This is not the case for most developing States, however: their statehood arose out of decolonization in the 20th century. At that time, many limits imposed on territorial sovereignty were already in place, shaped by Western States and former colonizers intent on promoting ‘globalization’, ‘modernization’, and ‘development’, without meaningful participation of these newly independent States.60 For many developing States, ‘sovereignty’ is not, and has never been the full and original sovereignty as enjoyed by Western States, only voluntarily limited for their own purposes and through their consent.61 It is, as Sara Seck describes it, an ‘impoverished sovereignty’ that from the outset has denied Third World States full legal and economic governance,62 including governance aimed at protecting human rights. Even as we write, limited policy space is afforded to host States to regulate economic affairs on their territory, as trade and investment treaties may prioritize the rights of foreign investors above the interests and rights of local communities.63 The World Bank all but enforces privatization of public services in

58 59 60 61 62 63

See E Criddle, E Fox-​Decent, Fiduciaries of Humanity: How International Law Constitutes Authority (oup 2016). See J Pauwelyn, Optimal Protection of International Law (cup 2008) 31. See A  Anghie, Imperialism, Sovereignty and the Making of International Law (cup 2005) 191–​192. ibid 117–​118. See also B Rajagopal, International Law from Below:  Development, Social Movements and Third World Resistance (cup 2003) 11. See S Seck ‘Home State Responsibility and Local Communities:  The Case of Global Mining’ (2008) 11 Yale Human Rights Devpt J 19. See M Sornarajah, ‘Linking State Responsibility for Certain Harms Caused by Corporate Nationals Abroad to Civil Recourse in the Legal Systems of Home States’, in C Scott (ed), Torture as Tort:  Comparative Perspectives on the Development of Transnational Human Rights Litigation (Hart 2001) 491.

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the interests of development, and thereby the relinquishing of State control over institutions that can be vital for the realization of the public good and human rights.64 In addition, even if they are legally and practically capable, host States may be unwilling to address corporate human rights abuses and to prioritize their citizens’ interests over those of foreign corporations, whether out of genuine economic concerns and the desire to preserve a favorable investment climate as noted above, or because the States themselves have been the primary violators of local rights. This means that the contemporary shape of sovereignty of host States mostly detracts from, rather than enhances their capacity to regulate corporate conduct, and to protect local communities against the harmful impact of multinational corporations. While sovereignty should guard the legal space of host States to protect and realize the rights of its citizens, it is functionally limited by existing doctrines and institutions of international law. Those same doctrines and institutions empower transnational corporations with respect to the States that they operate in, and disempower local communities compared to both the State and transnational corporate actors. Some scholars have consequently argued that for the full realization of political and economic self-​determination, the intervention of other States such as home States is called for.65 Such intervention could take the form of the exercise of adjudicatory jurisdiction in civil matters, enabling the filing transnational tort claims. This approach essentially breaks down the ‘bundle of rights’ conception of sovereignty and argues that some of those rights could be protected by other States if the territorial State cannot exercise its responsibility as a fiduciary of its population. The exercise of adjudicatory jurisdiction by home States should then be viewed not as a threat to the sovereignty of the host State, as protected by public international law, but rather as a reinforcement of it, an additional tool to promote the self-​governance of local communities. Thus, Jennifer Zerk has argued for a regulatory agenda on transnational corporations and human rights with a more flexible approach to adjudicatory jurisdiction, as the protection of human rights can be both in the home and 64 65

See Anghie (n 60) 245–​246; Rajagopal (n 61) 11. See A Peters, ‘Humanity as the A and Ω of Sovereignty’ (2009) 20 EJIL 513. It must however be noted that this conception of ‘humanity’ has been strongly criticized, epitomized in Schmitt’s assertion that ‘whoever invokes humanity, wants to cheat’. See C Sweetser, ‘Humanity as the Α and Ω of Sovereignty: Four Replies to Anne Peters’ (2009) 20 EJIL 549, citing Carl Schmitt, The Concept of the Political (University of Chicago Press 2007) 54. Similar arguments have been made by D Augenstein, ‘Paradise Lost: Sovereign State Interest, Global Resource Exploitation and the Politics of Human Rights’ (2016) 27 EJIL 669.

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host State’s interest.66 These ideas are echoed by De Schutter,67 Kirshner,68 and Augenstein:69 if host States cannot provide remedies and hold transnational corporations accountable for their impact on the human rights of local communities, host State measures such as the exercise of adjudicatory jurisdiction, which do vindicate those rights, should not be regarded as a threat to host State sovereignty but rather as supportive of it. In a system where control over transnational corporate actors is fragmented across territories, the actions of multiple States, including home States exercising ‘extraterritorial’ adjudicatory jurisdiction, may be necessary to rein in harmful corporate conduct. Obviously, there is a certain risk that home State adjudicatory jurisdiction serves other purposes than supporting host States and their local communities, or that such measures go beyond what is needed to protect human rights. The exercise of adjudicatory jurisdiction may perpetuate the impoverished nature of host State sovereignty and repeat historical patterns of domination.70 Thus, home States may respond to this risk by rejecting the exercise of adjudicatory jurisdiction on the ground that the twin public international law principles of sovereignty and non-​intervention bar them from hearing civil claims that originate abroad.71 In reality, however, using the language of host State sovereignty to justify the non-​exercise of adjudicatory jurisdiction may tend to obscure the export of home State interests in protecting ‘their’ corporate actors, to the detriment of host States and local communities that are affected by corporate activities. For example, whenever States have in fact objected to the exercise of adjudicatory jurisdiction over foreign corporations under the Alien Tort Statute can be read this way: the majority of these were raised by the home States rather than host States of these corporations, ostensibly calling on US courts to respect the 66 67 68 69 70

71

J Zerk, Multinationals and Corporate Social Responsibility (cup 2006) 136. See O De Schutter, ‘Towards a New Treaty on Business and Human Rights’ (2016) 1 Business Human Rights J 41. J Kirshner, ‘A Call for the EU to Assume Jurisdiction over Extraterritorial Corporate Human Rights Abuses’ (2015) 13 Northwestern J Intl Human Rights 1. See Augenstein (n 65) 370–​372. See R Chambers, ‘An Evaluation of Two Key Extraterritorial Techniques to Bring Human Rights Standards to Bear on Corporate Misconduct Jurisdictional Dilemma Raised/​ Created by the Use of the Extraterritorial Techniques’ (2018) 14(2) Utrecht L Rev 22; S Seck, ‘Transnational Business and Environmental Harm: A TWAIL Analysis of Home State Obligations’ (2011) 3 Trade L Devpt 164. Home States can and do rely on the language of sovereignty and jurisdictional limits to refrain from taking meaningful action to address the conduct of transnational corporations. See B Chimni, ‘An Outline of a Marxist Course on Public International Law’ (2004) 17 LJIL 20.

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sovereignty of host States by refusing to exercise jurisdiction over these cases.72 No such protests have yet been raised in European cases, probably because these were litigated in the home States themselves. This may, however, also explain the reluctance of these European home States to improve access to their domestic courts, bar international obligations to do so. In practice, by supporting the jurisdictional status quo these States cared more about protecting corporations against liability in a foreign court, than about protecting the sovereign interests of host States.73 Thus, one can understand why a scholar like BS Chimni, who is in general highly critical of unilateral regulatory measures, is so harsh on the refusal of Western courts to exercise adjudicatory jurisdiction in civil matters regarding abuses committed by transnational corporations.74 Chimni laments the existence of a ‘jurisdictional field’ that ‘embeds a set of jurisdictional competences that simultaneously allows the advanced capitalist states to exercise extraterritorial jurisdiction and to use the territorial foundations of the law to shield the [transnational capitalist class] and imperial state functionaries from advocates of transnational justice’. Here, Chimni refers to a practice of home states extensively using extraterritorial jurisdiction in favor of trade liberalization, while denying ‘justice jurisdiction’, ie the adjudication of claims against transnational corporations that benefit from that liberalization.75 What this implies is that while sovereignty and non-​intervention are of fundamental importance to the regulation and adjudication of the foreign practices of multinational corporations, one cannot rely on ‘sovereignty’ as a blanket argument against home State adjudicatory jurisdiction. As Chilenye Nwapi argues, it may be positively disingenuous of home States to field the argument 72

73 74

75

As exemplified by the amicus briefs sent by the UK and Dutch governments in support of Royal Dutch Shell in Kiobel. See Kiobel (n 45), Brief of the Governments of the United Kingdom of Great Britain and Northern Ireland and the Kingdom of the Netherlands as amici curiae in support of the respondents, available at (last accessed 31 December 2019). Augenstein (n 65)  14. See also U Kohl, ‘Corporate Human Rights Accountability:  the Objections of Western Governments to the Alien Tort Statute’ (2014) 63 ICLQ 684. Chimni (n 71) 10 criticizes both environmental protection measures and universal criminal jurisdiction as veiled means to maintain Western capitalist hegemony over developing Third World States. At the same time, he also criticizes US courts refusing jurisdiction in the Bhopal litigation for reasons of forum non conveniens. See also U Baxi, ‘Mass Torts, Multinational Enterprise Liability and Private International Law’ (1999) 276 Recueil des Cours de l’Académie de Droit International 312; H Zhenjie, ‘Forum Non Conveniens: An Unjustified Doctrine’ (2001) 48 Netherlands Intl L Rev 159. See also Seck, ‘Transnational Business’ (n 70) 164–​202.

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of host State sovereignty and ‘ook away from the egregious and unethical conduct of their corporations operating in the third world’.76 Instead, home States should exercise adjudicatory jurisdiction in ways that support rather than detract from the rights of host State peoples, and accordingly protect against the abuses committed by corporate actors. If sovereignty is indeed conditional on rights-​based governance, home State adjudicatory jurisdiction could in fact strengthen rather than infringe home State sovereignty. Especially home States which, via their historic and economic links with corporations,77 contribute, and have contributed to the impoverished sovereignty of host States, should take seriously their responsibility to exercise adjudicatory jurisdiction in respect of extraterritorial human rights harm caused by such corporations. If one accepts that public international law does not as such bar the exercise of adjudicatory jurisdiction in business and human rights tort claims, it remains that a critical assessment should be made as to whether, in practice, the exercise of such jurisdiction does not protect domestic home State interests more than it does the human rights of local communities abroad. The language of human rights can obfuscate true motives here. Seck notes in this respect that several scholars writing in the tradition of Third World Approaches to International Law (twail) are suspicious of human rights language as it has repeatedly been used to discipline host States without improving the situation of local communities.78 Human rights concerns have been used to condition foreign aid, or justify protectionist measures that benefit home States much more than they do host States.79 Moreover, human rights arguments have often focused on promoting liberal democracy according to the Western liberal model, rather than socio-​economic equality and locally controlled development.80 Relying on human rights in the context of adjudicatory jurisdiction in civil matters thus requires showing that the human rights

76 77

78 79 80

See Chambers (n 70) 27–​28, citing Ch Nwapi, Litigating Extraterritorial Corporate Crimes in Canadian Courts (2012), Thesis University of British Columbia (Vancouver) 54. Examples of such corporations are Shell with respect to the United Kingdom and the Netherlands, Anglo American in the United Kingdom, and Comilog’s parent company Eramet in France. Note that these companies got the initial concessions in British and French colonies respectively, under colonial rule. A  more general discussion of home State involvement with transnational corporations, see J Braithwaite, P Drahos, Global Business Regulation (cup 2000) 629. See Seck, ‘Home State Responsibility’ (n 62) 20–​22, citing Anghie (n 60) 224–​236. See Chambers (n 70) 32–​33. This problem has recently gained general attention after the publication of Samuel Moyn’s treatise on how the human rights movement has failed to address rising inequality. See S Moyn, Not Enough: Human Rights in an Unequal World (Harvard UP 2018).

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argument indeed benefits and empowers the rights-​holders. This, however, is an argument that builds on sovereignty just as much as any argument against home State adjudication. When assessing the appropriateness of exercising adjudicatory jurisdiction, not only the conduct of the home State but also that of the host State should factor in the equation. If the host State itself fails to live up to its human rights obligations to protect and remedy against harmful actions of transnational corporations, the sovereignty objection to foreign States exercising adjudicatory jurisdiction with respect to those actions carries less strength. This is even more so when the host State itself is the primary human rights violator: it would be difficult to argue that this very State is in the best position to regulate and adjudicate the conduct of a transnational corporation that operated as its accomplice. Viewed from these perspectives, there is a good case to be made for the compatibility with host State sovereignty of adjudicatory jurisdiction as exercised by third States, such as home States. Provided that such jurisdiction has a legal basis in domestic private law, home States actually exercising it are unlikely to step beyond the limits of jurisdiction under public international law. This is in line with our aforementioned general position that, in practice, public international law does not tend to constrain the exercise of adjudicatory jurisdiction in civil matters. Home State adjudicatory jurisdiction may at times even be preferable to host State jurisdiction, although it may go too far to state that there is an obligation under current public international law to provide access to court for foreign plaintiffs in respect of extraterritorial human rights harm.81 At the end of the day, one should also acknowledge that the mere offering of an adjudicative forum for the settlement of disputes is less intrusive than the application of the substantive domestic law of the forum. In public law (criminal and regulatory) law, the exercise of adjudicatory jurisdiction will coincide with the exercise of prescriptive jurisdiction, as the court will apply (‘prescribe’) its own law to settle the dispute. Indeed, States do not normally apply foreign public laws.82 In private international law, however, a forum’s exercise of adjudicatory jurisdiction need not go hand in hand with the exercise of prescriptive jurisdiction.83 Per rules of private international law applicable 81

82 83

See on the non-​existence of extraterritorial obligations in this respect: C Methven O’Brien, ‘The Home State Duty to Regulate the Human Rights Impacts of TNCs Abroad: A Rebuttal’ (2018) 3 Business Human Rights J 47; cf Naït-​Liman (GC) (n 1) holding that there is no international obligation to exercise this form of adjudicatory jurisdiction with respect to torture. The Antelope, 23 US (10 Wheat) 66 (1825) 123. See also Mills, ‘Private Interests’ (n 27) 14 stating: ‘In private law disputes, issues of “jurisdiction” (in the international law sense) must therefore involve a careful distinction

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to torts, the applicable law is, in principle, the law of the State where the harm occurred. This exercise of prescriptive jurisdiction would then be covered by the territoriality principle, the fundamental permissive principle of public international law jurisdiction. In the context of business and human rights tort claims, this means that a forum (home) State exercising adjudicatory jurisdiction over transnational business and human rights claims will in principle go on to apply the (territorial) law of the host State. Such a method respects the host State’s competence to regulate its domestic affairs in accordance with the principle of territorial sovereignty. It does not superimpose a home State assessment of what should be the appropriate level of substantive regulation in the host State. Accordingly, home State adjudication is less susceptible to host State protests than the imposition of new norms through administrative regulation would be. Nevertheless, it should be signaled that the application of host State law can be problematic from the perspective of the victim, in case host State law affords substantially less protection than home State law. In conclusion, it can be stated that raising the argument of host State sovereignty against the exercise of adjudicatory jurisdiction by home State adjudication is at best a ‘flat’ argument, which ignores both the historical and economic realities confronting host State sovereignty. At worst, it is a hypocrisy that enables one infringement of a host State’s domestic affairs by ostensibly protecting against another.84 6

Concluding Observations

In this contribution, we have argued that the legality of assertions of adjudicatory jurisdiction under private international law is potentially contingent on public international law, but that in practice public international law hardly poses constraints on such assertions. Foreign State protests against a forum State’s exercise of adjudicatory jurisdiction are few and far between. Our finding that, practically speaking, private international law-​based adjudicatory

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between the exercise of judicial process (generally referred to, somewhat unhelpfully, as the question of “jurisdiction”) and the applicable law which is actualised through that process (generally referred to as the question of “choice of law”)’. Contra Mora (n 22), suggesting that choice of law relates to enforcement jurisdiction: ‘The choice of law enquiry does not form part of the international jurisdiction to prescribe. (...) A decision on the application of the law is on that is concerned with its enforcement’. See S Krasner, Sovereignty: Organized Hypocrisy (Princeton UP 1999).

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jurisdiction is not constrained by public international law, shifts the debate to another question: the question of whether the exercise of adjudicatory jurisdiction may be mandatory. This question was central in Naït-​Liman. If it is true indeed that public international law permits almost any assertion of adjudicatory jurisdiction, does it perhaps, in some circumstances at least, require that particular forms of adjudicatory jurisdiction are codified in domestic private international law codes, and require that such jurisdiction is also actually exercised in given cases?85 In this respect, it could be argued that in tort cases that involve human rights abuses, the right to a remedy, which is laid down in public international (human rights) law,86 should guide the exercise of adjudicatory jurisdiction. This would mean that private international law rules should be designed and applied in such a way that they contribute to public, global objectives, such as offering an adequate legal remedy to victims of violations of internationally recognized human rights. This is in keeping with recent scholarship which highlights the global governance potential and global regulatory effects of technical rules of private international law.87

Bibliography

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See on the shift in the law of jurisdiction of jurisdiction from a ‘ceiling’ (constraints) to a ‘floor’ (minimum obligations) also Mills, ‘Rethinking Jurisdiction’ (n 37). See on remedies in international human rights law, including the right to a remedy eg D Shelton, Remedies in International Human Rights Law (oup 1999). See also Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, Resolution adopted by the UN General Assembly on 16 December 2005, UN Doc. A/​RES/​60/​147. H Muir Watt, D Fernandez Arroyo (eds), Private International Law and Global Governance (oup 2015); Mills ‘Connecting Public and Private’ (n 36) 27 submitting that ‘private international law might be applied to achieve equivalent public, systemic objectives, at the international level, closely aligned to those of public international law’.

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Barrie G, ‘Moving towards Universal Jurisdiction?: United States Courts and the Alien Tort Statute‘ (2010) 35 South African Ybk Intl L 180. Baxi U, ‘Mass Torts, Multinational Enterprise Liability and Private International Law’ (1999) 276 Recueil des Cours de l’Académie de Droit International 312. Bomhoff J, ‘The Reach of Rights: “The Foreign” and “The Private” in Conflict-​of-​Laws, State-​Action, and Fundamental-​Rights Cases with Foreign Elements’ (2008) 71 L Contemporary P 39. Braithwaite J and Drahos P, Global Business Regulation (cup 2000). Chambers R, ‘An Evaluation of Two Key Extraterritorial Techniques to Bring Human Rights Standards to Bear on Corporate Misconduct Jurisdictional Dilemma Raised/​ Created by the Use of the Extraterritorial Techniques’ (2018) 14(2) Utrecht L Rev 22. Chimni BS, ‘An Outline of a Marxist Course on Public International Law’ (2004) 17 LJIL 20. Criddle E and Fox-​Decent E, Fiduciaries of Humanity: How International Law Constitutes Authority (oup 2016). De Schutter O, ‘Towards a New Treaty on Business and Human Rights’ (2016) 1 Business Human Rights J 41. Dodge W and Dodson S, ‘Personal Jurisdiction and Aliens’ (2018) 116 Michigan L Rev 1205. Dodge W, Roberts A and Stephan P, ‘Jurisdiction to Adjudicate Under Customary International Law’, Opinio Juris, 11 September 2018, available at (accessed 31 December 2019)). French D and Ruiz Abou-​Nigm V, ‘Jurisdiction: Betwixt Unilateralism and Global Coordination’, in V Ruiz Abou-​Nigm, K McCall-​Smith and D French (eds), Linkages and Boundaries in Private and Public International Law (Hart 2018) 75. Jain AG, ‘Universal Civil Jurisdiction in International Law’ (2016) 55 Indian J Intl L 209. Hall CK, ‘The Duty of States Parties to the Convention against Torture to Provide Procedures Permitting Victims to Recover Reparations for Torture Committed Abroad’ (2007) 18 EJIL 921. Hill J, ‘The Exercise of Jurisdiction in Private International Law’, in P Capps, M Evans and S Konstadinidis (eds), Asserting Jurisdiction: International and European Perspectives (Hart 2003) 39. Kirshner J, ‘A Call for the EU to Assume Jurisdiction over Extraterritorial Corporate Human Rights Abuses’ (2015) 13 Northwestern J Intl Human Rights 1. Kohl U, ‘Corporate Human Rights Accountability: The Objections of Western Governments to the Alien Tort Statute’ (2014) 63 ICLQ 684. Krasner S, Sovereignty: Organized Hypocrisy (Princeton UP 1999). Ku J, ‘Kiobel and the Surprising Death of Universal Jurisdiction under the Alien Tort Statute’ (2013) 107 AJIL 835. Liste P, ‘Transnational Human Rights Litigation and Territorialised Knowledge: Kiobel and the ‘Politics of Space’” (2014) 5 Transnl L Theory 1.

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Liste P, ‘Geographical Knowledge at Work: Human Rights Litigation and Transnational Territoriality’ (2016) 22 Eur J Intl Rel 217. Mann FA, ‘The Doctrine of Jurisdiction in International Law’ (1964) 111 Recueil des Cours de l’Académie de Droit International 14. Methven O’Brien C, ‘The Home State Duty to Regulate the Human Rights Impacts of TNCs Abroad: A Rebuttal’ (2018) 3 Business Human Rights J 47. Michaels R, ‘Is Adjudicatory Jurisdiction a Category of Public International Law?’, Opinio Juris, 20 September 2018, available at (last accessed 31 December 2019). Mills A, ‘Connecting Public and Private International Law’ in V Ruiz Abou-​Nigm, K McCall-​Smith, D French (eds), Linkages and Boundaries in Private and Public International Law (Hart 2018) 13. Mills A, Party Autonomy in Private International Law (cup 2018). Mills A, ‘Private Interests and Private Law Regulation in Public International Law Jurisdiction’, in S Allen, D Costelloe, M Fitzmaurice, P Gragl and E Guntrip (eds), Oxford Handbook on Jurisdiction in International Law (oup 2019) 330. Mills A, ‘Rethinking Jurisdiction in International Law’ (2014) 81 British Ybk Intl L 187. Mora PD, ‘The Legality of Civil Jurisdiction over Torture under the Universal Principle’ (2010) 52 German Ybk Intl L 367. Mora PD, ‘Universal Civil Jurisdiction and Forum Necessitatis: The Confusion of Public and Private International Law in Naït-​Liman v. Switzerland’ (2018) 65 Netherlands Intl L Rev 165. Mora PD, ‘The Alien Tort Statute after “Kiobel”: the Possibility for Unlawful Assertions of Universal Civil Jurisdiction Still Remains’ (2014) 63 ICLQ 699. Moyn S, Not Enough: Human Rights in an Unequal World (Harvard UP 2018). Muir Watt H, ‘Private International Law Beyond the Schism’ (2011) 2 Transnl L Theory 347. Nolte G, ‘Universal Jurisdiction in the Area of Private Law: the Alien Tort Claims Act’, in C Tomuschat and J Thouvenin (eds), The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes (Nijhoff 2006) 373. Nwapi C, Litigating Extraterritorial Corporate Crimes in Canadian Courts (2012), Thesis University of British Columbia (Vancouver). Parlett K, ‘Universal Civil Jurisdiction for Torture’ (2007) 4 Eur Human Rights L Rev 385. Parrish A, ‘Judicial Jurisdiction: The Transnational Difference’ (2019) 59 Virginia J Intl L. Parrish A, ‘Remaking International Law? Personal Jurisdiction and the Fourth Restatement of the Foreign Relations Law’, Opinio Juris, 6 September 2018 available at (last accessed 31 December 2019). Pauwelyn J, Optimal Protection of International Law (cup 2008). Pavoni R, ‘The Myth of the Customary Nature of the United Nations Convention on State Immunity:  Does the End Justify the Means?’, in A van Aaken and I Motoc

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(eds), The European Convention of Human Rights and General International Law (oup 2018) 264. Peters A, ‘Humanity as the A and Ω of Sovereignty’ (2009) 20 EJIL 513. Rajagopal B, International Law from Below: Development, Social Movements and Third World Resistance (cup 2003). Roorda L, ‘Adjudicate This! –​Foreign Direct Liability and Civil Jurisdiction in Europe’, in A Bonfanti (ed), Business and Human Rights in Europe. International Law Challenges (Routledge 2018) 195. Ryngaert C, ‘Universal Tort Jurisdiction over Gross Human Rights Violations’ (2007) 38 Netherlands Ybk Intl L 3. Schmitt C, The Concept of the Political (University of Chicago Press 2007). Seck S, ‘Home State Responsibility and Local Communities: The Case of Global Mining’ (2008) 11 Yale Human Rights Devpt J, 19. Seck S, ‘Transnational Business and Environmental Harm: A TWAIL Analysis of Home State Obligations’ (2011) 3 Trade L Devpt 164. Shelton D, Remedies in International Human Rights Law (oup 1999). Sornarajah M, ‘Linking State Responsibility for Certain Harms Caused by Corporate Nationals Abroad to Civil Recourse in the Legal Systems of Home States’, in Scott C (ed), Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation (Hart 2001) 491. Staker C, ‘Jurisdiction’, in Evans M (ed), International Law (5th ed, oup 2018). Sweetser C, ‘Humanity as the Α and Ω of Sovereignty:  Four Replies to Anne Peters’ (2009) 20 EJIL 549. Webb P, ‘A Moving Target: The Approach of the Strasbourg Court to Immunity’ in A van Aaken and I Motoc (eds), The European Convention of Human Rights and General International Law (oup 2018) 251. Zerk J, Multinationals and Corporate Social Responsibility (cup 2006). Zhenjie H, ‘Forum Non Conveniens: An Unjustified Doctrine’ (2001) 48 Netherlands Intl L Rev 159.

chapter 5

Universal Civil Jurisdiction and Reparation for International Crimes Beatrice I. Bonafè 1

Introduction

Under international law, the commission of international crimes has prompted at first the development of secondary rules of State and individual responsibility, ie, legal regimes that focused on the perpetrators of mass atrocities so that the locally-​affected communities as well as the international community were able to attach legal consequences to the most serious breaches of international rules. Arguably, the demands for justice that immediately follow the commission of international crimes are firstly expressed in terms of accountability and punishment. Today, the expression ‘international crimes’ is commonly used to refer to international criminal law and the punishment of individual perpetrators. The main purpose of this branch of international law is precisely to ensure the trial of the culprits and to avoid impunity at the international level. It is in this context that a rule on universal criminal jurisdiction has emerged, alongside prosecution before international courts, so that national courts can have the possibility to try individual perpetrators of international crimes even in the absence of a connection with their national legal order. It must be recalled that the expression ‘international crimes’ was also used to refer to particularly serious breaches of international obligations that should have entailed an aggravated regime of State responsibility.1 Although the Articles eventually adopted in 2001 no longer mention international crimes of State, the regime of State

1 The distinction between delicts and crimes was elaborated in 1976 by Special Rapporteur Roberto Ago. See ilc, ‘Fifth report on State responsibility by Mr Roberto Ago, Special Rapporteur’ (22 March, 14 April and 4 May 1976) UN Doc A/​CN.4/​291. Ago’s proposal was initially accepted by the ilc and led to the adoption of famous Article 19 entitled ‘International crimes and international delicts’. See ilc, ‘Report of the International Law Commission on the Work of its twenty-​eighth session (3 May-​23 July 1976)’ UN Doc A/​31/​10, chap III, paras 61–​78.

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004408579_007

100 Bonafè responsibility provides for a general duty to make reparation that applies also with regard to international crimes.2 More recently, growing attention is paid to the victims of international crimes and the damage they suffer as a consequence of the commission of such crimes. A different kind of justice is hence called for: the victims ask for a recognition of their status in the broader society that includes victims and perpetrators, as well as compensation together with other means ensuring reconciliation of the entire society. At the international level, new mechanisms have been envisaged to that end, such as the reparation measures that can be adopted by the International Criminal Court. With the purpose to ensure reparation also at the national level, the notion of universal civil jurisdiction is increasingly discussed as a possible jurisdictional basis for civil actions brought by the victims of international crimes before national courts of countries having no connection with such breaches. In the broader context of post-​conflict and reconciliation processes, universal civil jurisdiction starts being regarded as an additional instrument to ensure redress for past atrocities. However, recent judicial practice seems extremely cautious  –​not to say reluctant –​to apply that notion. And its legal status under international law remains highly uncertain. The present analysis will focus on the relationship between universal civil jurisdiction and the duty to make reparation, because it can explain why universal civil jurisdiction inevitably plays a limited role in providing reparation for the damages caused by the commission of international crimes. In addition, this standpoint has the advantage of revealing the fundamental tension between collective and individual forms of redress that is generally overlooked –​ notably by international lawyers  –​when studying the reaction to past atrocities. As the relationship between reparation and universal civil jurisdiction is potentially a very broad issue, the following analysis will be confined to international rules directed at States. First, the criminal law dimension will not be examined. Second, the analysis will focus on ‘civil’ remedies for collective and individual damages caused by international crimes, but it will not take into account the civil liability of individual perpetrators. Third, national remedies will be taken into account only to the extent that they are relevant to establish the content of international rules. Finally, the expression ‘international crimes’ 2 The ilc included a few provisions making it clear that the commission of serious breaches of jus cogens by States entails not only the ordinary consequences of the regime of State responsibility but also some additional consequences. See in particular Articles 40 and 41 of the ILC ‘Articles on Responsibility of States for Internationally Wrongful Acts and Their Commentaries’ attached to the UN General Assembly resolution 56/​83 of 12 December 2001.

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is used to refer to serious breaches of international law, such as genocide, crimes against humanity, and war crimes, entailing both State and individual ­responsibility. This chapter is divided into four parts that aim at illustrating four main arguments. The first is that the duty to make reparation is an international obligation having a very broad scope under the law of State responsibility. The second is that, in general terms, universal civil jurisdiction can be said to fulfil the purpose of reparation, although it remains separate from the State duty to make reparation for international crimes. The third is that universal civil jurisdiction does not exhaust that duty; this is exemplified by the comparison between universal civil jurisdiction and universal criminal jurisdiction, on the one hand, and by the increasing role played by collective reparations, on the other. The inevitable consequence will be that the exercise of universal civil jurisdiction should be coordinated with other forms of redress for international crimes that take into account the collective dimension of reparation for such violations. 2

The Duty to Make Reparation for International Crimes

The obligation for States to make reparation is a secondary rule attached to the breach of primary State obligations. When this obligation is restated, it is common to find references to the pcij dictum in Chorzów Factory: ‘It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form. Reparation therefore is the indispensable complement of a failure to apply a convention’.3 As the breach of any other obligation, also the commission of international crimes entails a duty to make reparation under the general regime of State responsibility. The obligation of States to make reparation has been consistently upheld with respect to the commission of international crimes so that today it arguably applies under customary international law.4

3 Case Concerning the Factory at Chorzów (Germany v Poland) (Jurisdiction) pcij Rep Series A No 9, 21. 4 See in general the ilc commentaries on the Articles on State Responsibility (n 2). A duty to make reparation for the commission of genocide, war crimes and grave breaches of human rights has been restated by the International Court of Justice. See Legal Consequences of the Construction of a Wall in the Palestinian Occupied Territory (Advisory Opinion) [2004] icj Rep 136; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] icj Rep 43.

102 Bonafè The obligation to make reparation under the law of State responsibility is a substantive obligation characterised by a very broad scope. As codified by Article 34 of the International Law Commission (ilc) Articles on State Responsibility, full reparation can encompass ‘restitution, compensation and satisfaction, either singly or in combination’. As far as international crimes are concerned, restitution is mostly impossible; hence, reparation would likely take the form of compensation and/​or satisfaction. In that regard, three aspects are worth recalling: the obligation to provide reparation is premised on the commission of a violation by a State, not on the damage caused; the obligation necessarily has a collective dimension because its purpose is to ensure reparation to the injured State or to the beneficiaries of the obligation breached; and, with respect to international crimes, the collective character of reparation is coupled with the collective character of such crimes that entail a multiplicity of victims. In practice, the obligation to afford reparation for international crimes can be enforced at the international or national level by having recourse, possibly in combination, to a variety of judicial and non-​judicial means that would take into account the different kinds of individual and collective damages caused.5 The collective nature of reparation was underlined by the International Court of Justice in Germany v Italy: Moreover, against the background of a century of practice in which almost every peace treaty or post-​war settlement has involved either a decision not to require the payment of reparations or the use of lump sum settlements and set-​offs, it is difficult to see that international law contains a rule requiring the payment of full compensation to each and every individual victim as a rule accepted by the international community of States as a whole as one from which no derogation is permitted.6 This collective dimension represents the main difficulty of appraising the legal relation entailed by the duty to make reparation. While the responsible State is the duty-​bearer, the holder of the corresponding right can be another State, an individual or even a group of victims. And this explains the profound division among international law scholars on the question of the existence of 5 See especially Principles 19, 31, 32, 34 of the unchr ‘Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity. Addendum to the Report of the Independent Expert to Update the Set of Principles to Combat Impunity, Diane Orentlicher’ (8 February 2005) UN Doc E/​CN.4/​2005/​102/​Add.1. 6 Jurisdictional Immunities of the State (Germany v Italy; Greece intervening) (Judgment) [2012] icj Rep 99, para 94.

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an individual right to reparation for the damage caused by the commission of international crimes. While some consider that there is ‘overwhelming support’ for the existence of an individual right to reparation under customary international law,7 others simply maintain that the existence of such a right is unsupported by State practice, at least at the present stage of development of international law.8 Clearly, in national legal orders the existence of an individual right to reparation is the rule. Under international law such a right can be provided under treaty provisions. In any case, this aspect is secondary because universal civil jurisdiction implies that the right to reparation would be invoked under municipal law. For the purposes of the present analysis, it is important to point out the complexity of the legal relationship entailed by the duty to make reparation for international crimes, because potentially a multitude of victims of international crimes can claim reparation –​no matter if that claim is based on international or municipal law –​at least at three levels: the individual, the group and the State level. Hence, in the end, the State duty to grant reparation may correspond to an individual right, a group right and a State right to obtain reparation. 3

The Faculty to Exercise Universal Civil Jurisdiction

At first, universal civil jurisdiction may appear as a legal tool having little in common with the State duty to make reparation. It is procedural in character as it basically allows individual victims of international crimes to have access to municipal courts of States that have no link with the commission of those crimes.9 Universal civil jurisdiction does not provide for a right of action which must be found in any case in the municipal law of the court exercising ­jurisdiction.10 Yet, universal civil jurisdiction is an international rule directed at States, not at individuals. By allowing States to exercise their adjudicatory jurisdiction, it 7 8 9 10

M Evans, The Right to Reparation in International Law for Victims of Armed Conflict (cup 2014) 40. C Tomuschat, ‘State Responsibility and the Individual Right to Compensation before National Courts’, in A Clapham and P Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict (oup 2014) 811. See the various contributions in (2005) 99 asil Proceedings 117, 117–​128. The US Alien Tort Claims Act is the main example of exercise of universal civil jurisdiction; US courts considered that the Act provided for jurisdiction only, and that the cause of action for violations of the law of nations mentioned therein had to be found in common law. See especially Sosa v Alvarez Machain, 542 US 692 (2004) 30.

104 Bonafè basically ensures compliance at the municipal level with secondary rules of State responsibility. Ultimately, it identifies municipal orders as suitable providers of judicial remedies for international crimes. While its goal is to provide some form of redress for such breaches, the main assumption on which universal civil jurisdiction rests is to exclude the violation of the principle of non-​intervention in internal affairs of another State so that the exercise of municipal jurisdiction over international crimes cannot be seen as a form of intervention but rather an activity aimed at ensuring respect of international law.11 And this shows the interstate character of the notion of universal civil jurisdiction. Therefore, it is possible to conceive universal civil jurisdiction, despite its special character, as aimed at fulfilling the goal of ensuring reparation for international crimes.12 This is the first type of relationship that can be identified between the two notions: universal civil jurisdiction can be seen as functional with respect to reparation. Three main arguments can be advanced in that respect. It is undeniable that universal civil jurisdiction is ultimately meant at providing a form of reparation for the victims of international crimes, at least some of them. The resolution adopted on this subject by the Institut de droit international (idi) in 2015 was clearly premised on such a goal of universal civil jurisdiction.13 Second, municipal courts that rule on disputes concerning reparation for international crimes can be regarded as acting in dédoublement fonctionnel,14 as if they were delegated by the whole international community to guarantee such 11 12

13

14

See eg Africa Legal Aid (afla), ‘The Cairo-​Arusha Principles on Universal Jurisdiction in Respect of Gross Human Rights Offences: An African Perspectives’, available at (last accessed 31 December 2019), Principle 6. An alternative explanation has been recently rejected in national case law, one according to which universal civil jurisdiction could be asserted on the basis of the jus cogens exception to State immunity. In Flatow, the Italian Supreme Court accepted the existence of an exception to State immunity in cases involving an international crime, but refrained from stating that such an exception entailed an obligation to exercise universal civil jurisdiction: Corte di Cassazione, Joint Chambers, judgment no 21946 of 28 October 2015 (2017) 53 rdipp 382. In any case, the jus cogens exception to State immunity hardly finds any recognition among States. The first preambular clause reads: ‘conscious that the appropriate and effective reparation has to be provided for the harm suffered by the victims of international crimes’. The resolution entitled ‘Universal Civil Jurisdiction with regard to Reparation for International Crimes’ is published in the (2015) 76 Annuaire de l’Institut de droit international, Session de Tallinn 263. G Scelle, ‘Le phénomène juridique du dédoublement fonctionnel’, in W Schätzel and HJ Schlochauer (eds), Rechtsfragen der internationalen Organization. Festschrift für Hans Wehberg (Klostermann 1956) 331.

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a civil form of redress. Third, recent case law of the European Court of Human Rights seems to confirm such a link between universal civil jurisdiction and the duty to make reparation. The most recent decision on the subject deserves closer attention. In 2018 the Grand Chamber of the European Court of Human Rights decided in Naït-​Liman that international law did not provide for an obligation to exercise universal civil jurisdiction. The case concerned damages sought as a consequence of the commission of acts of torture. The judgment did not seem to exclude –​it rather supported –​the existence under international law of a faculty to exercise such an extraterritorial jurisdiction in torture cases. The decision of the Court acknowledged ‘the broad international consensus recognising the existence of a right for victims of acts of torture to obtain appropriate and effective compensation’,15 but conceived that right as territorially limited. As a consequence, the Court denied the existence of an international rule obliging States to exercise universal civil jurisdiction with respect to international crimes,16 and concluded that the Swiss decision to decline jurisdiction in Naït-​Liman was in conformity with Article 6 echr.17 Perhaps surprisingly, the decision went on and added that the Court’s conclusion ‘does not call into question the broad consensus within the international community on the existence of a right for victims of acts of torture to obtain appropriate and effective redress’.18 Thus, despite the absence of an international obligation in that regard, the Court encouraged States to open their courts to victims seeking damages for acts of torture and commended the efforts made by States to that end.19 This approach is perfectly understandable if we consider that 15 16

Naït-​Liman v Switzerland App no 51357/​07 (ECtHR, GC, 15 March 2018) para 97. ibid. The same conclusion was reached in Naït-​Liman v Switzerland App no 51357/​07 (ECtHR, 21 June 2016). For a different position see A Bucher, ‘La compétence universelle civile’ (2014) 372 Recueil des Cours de l’Académie de Droit international 9. 17 Naït-​Liman v Switzerland (GC) (n 15)  para 198. The Court examined the practice of 39 European States as well as that of Canada and the usa before concluding that ‘states that recognise universal civil jurisdiction are currently the exception’ (ibid para 187). Among European States only the Netherlands recognise universal civil jurisdiction, but it is not clear whether a link with the forum is required and therefore whether it can be regarded as proper universal civil jurisdiction (ibid para 183). Recent case law of the usa has upheld a similar connection requirement for the application of the atca, see below (n 53). As far as treaty law is concerned, the main candidate for universal civil jurisdiction before the Court was Article 14 of the Torture Convention, but the Court considered that this provision did not provide an argument in favour of universal civil jurisdiction, basically on the ground of the practice of individual communications of the Committee against torture, see Naït-​Liman v Switzerland (GC) (n 15) paras 189–​190. 18 ibid para 218. 19 ibid.

106 Bonafè the Court looks at reparation for international crimes not from the standpoint of the State duty (that could be enforced with collective measures) but from that of individual rights. On the other hand, if these statements are not purely de lege ferenda, the Court is apparently suggesting that what exists under international law is not an obligation but a faculty to exercise universal civil jurisdiction. The judgment prompts two more general remarks. If any, the international rule on universal civil jurisdiction should be understood as a rule authorising, not obliging, States to exercise this kind of jurisdiction.20 The arguments used by the Court to exclude the existence of an obligation to exercise universal civil jurisdiction are quite compelling: such an obligation can hardly pass the test of ‘settled practice and opinio juris’,21 and universal jurisdiction is essentially mentioned in non-​binding documents.22 On the other hand, the existence under international law of a faculty of national courts to adopt reparation measures on the basis of universal civil jurisdiction could be inferred more easily. The existence of an international rule that authorises States to exercise universal civil jurisdiction might offer a legal ground for those cases in which universal civil jurisdiction is actually provided under national legislation; it could at the same time explain the freedom that States enjoy under international law not to exercise it; it might lead to the adoption of reparation measures for some of the victims; and it might even be a triggering factor for the adoption of comprehensive schemes of reparation at the international or national level.23 20 21

22

23

See in particular FD Donovan and A  Roberts, ‘The Emerging Recognition of Universal Civil Jurisdiction’ (2006) 100 AJIL 142; K Parlett, ‘Universal Civil Jurisdiction for Torture’ (2007) 4 Eur Human Rights L Rev 385. North Sea Continental Shelf (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands) (Judgment) [1969] icj Rep 3, para 77. Some legal scholars are very critical in that regard and consider that international law does not provide for universal civil jurisdiction. See in particular L Reydams, ‘Universal Jurisdiction in Context’ (2005) 99 ASIL Proceedings 118; PD Mora, ‘The Alien Tort Statute after Kiobel: The Possibility for Unlawful Assertions of Universal Civil Jurisdiction still Remains’ (2014) 63 ICLQ 699; AG Jain, ‘Universal Civil Jurisdiction in International Law’ (2015) 55 Indian J Intl L 209. See the Resolution of the Institut de droit international on universal civil jurisdiction (n 12). Apart from the stunt affirmation of the victims’ rights to reparation and to access to court in Article 1, the resolution’s other clauses are all drafted in recommendatory terms as the systematic use of ‘should’ shows. Reference can also be made to the General Assembly resolution on ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law’, (16 December 2005)  UN Doc A/​res/​60/​147. D Vagts and P Murray, ‘Litigating the Nazi Labor Claims: The Path Not Taken’ (2002) 43 Harvard Intl L J 503.

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The second remark that is prompted by the Naït-​Liman case concerns the origin of the universal civil jurisdiction rule which is to be found, as examined below, on the protection of some core obligations owed to the international community as a whole, that is, those prohibiting the commission of international crimes. This justifies both the absence of any link with the forum State, which has nonetheless an interest in the respect to such obligations, and the possibility to consider the national judge as acting in dédoublement fonctionnel, on behalf of the entire international community. 4

Universal Civil Jurisdiction Does Not Exhaust the Duty to Make Reparation

Although ensuring reparation for international crimes can be seen as the goal of universal civil jurisdiction, this ground of jurisdiction and the duty to make reparation must nonetheless be kept separate. Universal civil jurisdiction does not offer a comprehensive settlement for the various grievances that may be caused by the commission of international crimes by States. It is a form of redress that is essentially individualised in its result because it provides for the selective compensation of those individuals that had brought a specific case before national courts. It ignores the reparation of collective damages suffered either by States or by groups of victims, if not in the form of a sum of individual ones. In addition, universal civil jurisdiction is meant to operate at the municipal level, whereas the duty to make reparation operates first and foremost at the international level. All these characteristics mark a clear distinction between the former and the latter. The inevitable consequence at this stage is that universal civil jurisdiction cannot exhaust the State obligation to provide reparation for international crimes. First, they operate at different levels; the former is a procedural rule, while the latter is a substantive rule. Second, universal civil jurisdiction can offer only a partial reparation for international crimes. It can entail the full compensation of the specific damage suffered by those individual victims of international crimes that have triggered national jurisdiction. While this might exhaust an individual’s right to reparation, it will never exhaust the collective reparation due to the State, the other victims or the entire group of victims as such. 4.1 Universal Civil Jurisdiction v Universal Criminal Jurisdiction A comparison between universal civil jurisdiction and universal criminal jurisdiction is particularly useful to substantiate that conclusion.

108 Bonafè It is true that both universal criminal jurisdiction and universal civil jurisdiction share the same ultimate purpose, that is, the protection of fundamental rules of the international community as a whole. If we compare the two resolutions of the Institut de droit international on these subjects, their preambles are telling on the importance of such purpose in both cases.24 This may explain the choice for the same type of rule, one making it possible for any State to react and for national jurisdiction to be exercised. In both cases, the scope of universal jurisdiction is obviously limited to the commission of international crimes. However, universal criminal jurisdiction and universal civil jurisdiction remain quite separate.25 While universal criminal jurisdiction rests on the secondary rule prescribing individual criminal responsibility and its goal is the prosecution of perpetrators of international crimes, universal civil jurisdiction, on the other hand, rests on the secondary rule concerning the duty to make reparation and its goal is to ensure the compensation of damages suffered by victims of international crimes. This distinction is important because in the end it reflects that between individual and State responsibility under international law. Most importantly, the different goals of universal criminal and civil jurisdiction justify the different relation they entertain respectively with the rule on individual responsibility and with the rule on reparation. Universal criminal jurisdiction, when successfully applied, leads to the punishment of authors of international crimes, through the application of a secondary (national) rule on criminal responsibility for international crimes. The punishment of the culprit clearly exhausts the need to enforce at the international level the corresponding (international) secondary rule on individual responsibility. When universal civil jurisdiction is successfully applied and leads to the compensation of damages suffered by the victims of international crimes who triggered the national civil remedies, this clearly does not exhaust the duty to make reparation for international crimes. Universal civil jurisdiction would 24

25

The 2015 Resolution on universal civil jurisdiction was preceded by the adoption, in 2005, of a resolution on ‘Universal criminal jurisdiction with regard to the crime of genocide, crimes against humanity and war crimes’ (2005) 71 Annuaire de l’Institut de Droit International, Séssion de Cracovie 297. The distinction is upheld by municipal courts that generally provide very imprecise reasons. See eg Jones and Mitchell v Saudi Arabia [2006] ukhl 26 [2007] 1 AC 270 [32]; Kazemi Estate v Iran 2014 scc 62 [2014] 3 scr 176 §104. See also B Van Schaack, ‘Justice without Borders: Universal Civil Jurisdiction (2005) 112 ASIL Proceedings 120; D Wallach, ‘The Irrationality of Universal Civil Jurisdiction’ (2015) 46 Georgetown J Intl L 803.

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only ensure a partial, one might be tempted to say discriminatory, redress as it does not address other victims’ claims independently of their character of group or State claims.26 Another difference in the application of the two notions is strictly linked to the previous ones. With respect to universal criminal jurisdiction, the ne bis in idem rule applies,27 which clearly mirrors the correspondence of the international and national secondary rule on individual criminal responsibility, independently of the fact that the relationship between international and national courts is governed by the principle of primacy or that of complementarity. The same cannot apply to universal civil jurisdiction. The reparation obtained by (a few) victims before national courts would not correspond to the reparation that can be obtained at the international level. An example is provided by the possibility for States to settle reparations through lump sum agreements and their power to waive reparation rights of individual victims of international crimes.28 4.2 The Collective Dimension of Reparation for International Crimes The fact that universal civil jurisdiction and the State duty to make reparation only partially overlap and that, as a consequence, universal civil jurisdiction affords only a limited, individualised form of redress for the commission of international crimes is perfectly exemplified by the growing recognition at the national and international level of the collective dimension of reparation for such serious breaches of international rules.29 There are three main areas in which the collective dimension of reparation can be appreciated: transnational justice mechanisms, human rights litigation and international criminal law. 4.3 Transitional Justice Mechanisms At the national level, the most common tools for dealing with past atrocities and ensuring the return to peaceful coexistence of the affected community are 26 27 28

29

See BI Bonafè, ‘La Corte europea dei diritti dell’uomo e la giurisdizione universale in materia civile’ (2016) 99 RDI 1113, 1118; G Gaja, ‘Alternative ai controlimiti rispetto a norme internazionali generali e a norme dell’Unione Europea’ (2018) 101 RDI 1045. See Article 20 of the Rome Statute. P D’Argent, ‘Des règlements collectifs aux règlements individuels (collectivisés)?’ (2003) 5 Intl L FORUM de droit international 10; A Bufalini, ‘On the Power of a State to Waive Reparation Claims Arising from War Crimes and Crimes against Humanity’ (2017) 77 ZaörRV 447. See F Mégret, ‘The Case for Collective Reparations before the International Criminal Court’, in J Wemmers (ed), Reparation for Victims of Crimes against Humanity (Routledge 2014) 185.

110 Bonafè transitional justice mechanisms. These often take the form of so-​called truth and reconciliation commissions, and they are established to investigate the truth by inquiring the relevant facts, identify those responsible, and recommend solutions that would address the injuries suffered by the victims and ensure reconciliation. Needless to say, each situation is different, and each truth and reconciliation commission has a different mandate, but some common features that are relevant for the purposes of the present inquiry can nonetheless be pointed out. An analysis of the reports of truth and reconciliation commissions shows first that their functions generally include three main aspects:  prosecution, institutional reforms, and reparation. The punishment of perpetrators, and therefore recourse to criminal justice, is most of the time the first claim of victims of mass atrocities. Since prosecution requires long and complex investigations, truth and reconciliation commissions are generally entrusted with the task of establishing what had really happened. This fact-​finding goal may eventually become prominent with respect to prosecution itself (for instance when pardon is accorded in exchange for confessions) or it can be considered as a preparatory step with respect to proper criminal proceedings (as is more generally the case). Institutional reforms, such as legislative amendments or the creation of special bodies at the State level, are often recommended by truth and reconciliation commissions, as these measures are seen as a clear engagement of national authorities in the reconciliation process, almost as guarantees of non-​repetition of past atrocities. Reparation generally takes the form of State comprehensive compensation schemes that deal with both damages suffered by individual victims and damages suffered by the victim group as such. Reparation measures have a strong symbolic meaning as they ideally allow to ‘settle’ past grievances, consider that the broken community is now reunited, and concentrate the efforts on reconstruction and peaceful ­reconciliation. In practice, reparation recommended by truth and reconciliation commissions is very far from full and prompt compensation of damages suffered by each and every victim. When actually provided under national schemes, reparation generally consists of (low) amounts of money representing symbolic individual compensation that are commonly coupled with collective reparations measures meant to address the collective damage suffered by the group of victims, for example medical facilities and services for victims of torture or sexual crimes. It must also be admitted that reparation schemes are rarely implemented in a timely manner, and sometimes rely on very narrow definitions of victims, while in other instances their actual adoption takes a long time; in the worst-​case scenario they are never implemented.

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Academic writings on the subject tend to highlight the peculiar notion of ‘justice’ that lies at the basis of these transitional mechanisms.30 The focus is generally on the community that was divided by the commission of international crimes and on the role of truth and reconciliation commissions in recommending measures that will re-​establish the lost societal bond. Their main goal is to look at the injuries of all victims as much as possible in a non-​ discriminatory and comprehensive way. They are not judicial organs  –​even if they may be entrusted with judicial tasks –​and are asked to address global measures of redress. As such they are very careful in taking into account the collective dimension of the crimes committed by adopting reparation measures that address both the damages suffered by the community of victims and the larger national community that engages in reconciliation.31 4.4 Human Rights Litigation When confronted with mass atrocities, which is not frequently the case, human rights courts have at first assumed the existence of an individual right to full compensation.32 However, the existence of such a right under treaty law (such as the echr or the achr) has gradually been balanced with the collective dimension of reparation for international crimes that was duly taken into account in other institutional contexts, such as the General Assembly Basic Principles.33 The recent judicial practice of human rights courts shows a growing attention to the collective dimension of reparation for international crimes even though their review concerns national reparation measures. Two main developments can be recalled in that respect. When dealing with gross violations of human rights, along with individual compensation human rights courts have adopted a number of reparation measures that are meant to address the collective damages caused by such 30 31

32

33

See in general P De Greiff (ed), The Handbook of Reparations (oup 2006) 153. For the different notions of injury and of community in connection with the commission of international crimes see F Rosenfeld, ‘Collective Reparations for Victims of Armed Conflict’ (2010) 92 IRRC 731; H Abtahi, ‘Types of Injury in Inter-​State Reparation Claims: A Guide for the International Criminal Court’ (2015) 30 Canadian J L Society 256. Reference is mainly made to the ECtHR and the IACtHR. The ECtHR inferred that right from Article 41 echr, see eg Comingersoll sa v Portugal App no 35382/​97 (ECtHR, 6 April 2000) para 29; Stolyarova v Russia App no 15711/​13 (ECtHR 29 January 2015) para 75. The IACtHR considered that Article 63(1) iachr codified a customary law right to compensation, see eg Velásquez Rodríguez v Honduras (IACtHR, 21 July 1989) para 25. See in particular the measures listed in paras 19–​23 of UNGA Res A/​60/​147 (n 22).

112 Bonafè gross violations.34 The typical example is provided by the case law of the IACtHR. When violations have been regarded as particularly serious, the Court has considered that a declaratory judgment would not be a sufficient form of reparation,35 that it would be appropriate to adopt measures of compensation with respect to ‘members of the community as a whole’,36 and that other forms of reparation were appropriate such as the investigation of the facts that resulted in the violations, and the prosecution of those responsible; the adoption of a public act acknowledging international responsibility to make reparation to the victims and to commemorate them; the translation of the judgments of the Court into the local language of the victim group; the publication of the pertinent parts of the judgments of the Court; the guarantee of non-​repetition by providing resources for the collective memory; the implementation of housing programs; the supply of medical and psychological treatment to the victims; and so on.37 Thus, such serious breaches do not call for compensation alone, but require other forms of reparation that address the ‘extreme gravity of the facts and the collective nature of the damage produced’.38 The second development is the design of procedural instruments especially aimed at dealing with situations where the collective dimension of the violation of human rights is paramount. The best example is provided by the ‘pilot-​ judgment procedure’ aimed at addressing structural violations of human rights by the ECtHR. The pilot judgment establishes the existence of a violation of the echr being at the basis of a considerable number of applications and entailed by a systematic or structural dysfunction under national law; it aims at helping national authorities to eliminate that dysfunction by indicating national remedies that potentially cover all similar cases.39 The Court requests the adoption of general measures such as legislative ones, administrative acts as well as judicial forms of redress, all aimed at solving the root cause of the structural violation, in a sense by offering guarantees of non-​repetition, and therefore taking into account ‘the many people affected’ by it.40 Thus, the collective dimension of those reparation measures is undeniable. And this collective dimension inevitably limits the individual rights of applicants before the ECtHR because all 34 35 36 37 38 39 40

See for the analysis of specific case studies De Greiff (n 30); Evans (n 7); M Bergsmo and others (eds), Distributive Justice in Transitions (Torkel Opsahl Academic EPublisher 2010). See eg Plan de Sánchez Massacre v Guatemala (IACtHR, 19 November 2004) para 81. ibid para 86. It is to be noted that both individual compensation and collective reparations are adopted by the Court ‘in fairness’ (ibid paras 74, 83, 87, 88). ibid para 93. Broniowski v Poland (ECtHR, 22 June 2004) para 193. ibid. The Court has inferred its power to adopt such measures from Article 46 echr.

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similar proceedings are suspended, and the remedy is expected to be provided by the responsible State in compliance with the Court’s judgment. More generally, what emerges from these examples is the need to differentiate the measures of redress according to the type of violation. If the violation is isolated and regards individual victims, compensation might indeed be the ideal form of reparation. If the violation amounts to an international crime, the collective character of that violation has to be reflected in the type of reparation measure adopted, so that the form of redress will be chosen in accordance with its capacity to address the overall consequences of the violation with respect to the multitude of victims.41 In the end, the original purely individualised approach to human rights violations has been abandoned in favour of one that could take into account the collective dimension of certain violations. 4.5 International Criminal Law Finally, a confirmation of these trends is provided by international criminal law. Especially, the case law of the International Criminal Court (icc) is instructive in that regard. The Statute of the Court offers for the first time the possibility for victims to claim reparations in connection with the commission of international crimes; it gives the Court the power to rule on such requests and the principles governing reparations; and it establishes a Trust Fund for the benefit of the victims. These developments reflect the ‘need to go beyond the notion of punitive justice, towards a solution which is more inclusive, encourages participation and recognises the need to provide effective remedies for victims’.42 The Court has adopted a number of reparations decisions that consistently relied on certain general principles considered to be part of customary international law.43 These principles are substantially inspired by the collective dimension that should characterise reparation for international crimes. First, from the very beginning the Court has made it clear that reparation has to be awarded in a fair and non-​discriminatory manner so that it can offer relief to ‘all victims’.44 This does not prevent the Court from affording special protection to certain kinds of victims such as children. 41 42 43 44

A Saccucci, La responsabilità internazionale dello Stato per violazioni strutturali dei diritti umani (Editoriale Scientifica 2018). Prosecutor v Lubanga (Decision establishing the principles and procedures to be applied to reparations) ICC-​01/​04-​01/​06 (7 August 2012) para 177. ibid para 185. It is to be noted that the Court makes reference to binding as well as non-​ binding documents. ibid paras 187–​192. See also Prosecutor v Al Mahdi (Order on reparation) ICC-​01/​12-​01/​15 (17 August 2017) para 105.

114 Bonafè Second, the Court confirmed to have the power to adopt individualised as well as collective reparations, and that these are not mutually exclusive.45 Collective reparations are appropriate when the damage is suffered by a community, which is quite the rule with international crimes. Third, reparations can take various forms: ‘[A]‌lthough Article 75 of the Statute lists restitution, compensation and rehabilitation as forms of reparations, this list is not exhaustive. Other types of reparations, for instance those with a symbolic, preventative or transformative value, may also be appropriate’.46 In general, reparations should be inspired by the goal of reconciling ‘the victims with their families and the affected communities’, and ‘whenever possible, reparations should reflect local culture and customary practices, unless these are discriminatory, exclusive or deny victims equal access to their rights’.47 Among collective measures that the Court is entitled to adopt, its case law makes reference to ‘establishing or assisting campaigns that are designed to improve the position of victims; by issuing certificates that acknowledge the harm particular individuals experienced; setting up outreach and promotional programmes that inform victims as to the outcome of the trial; and educational campaigns that aim at reducing the stigmatisation and marginalisation of the victims of the present crimes’.48 In practice, the Court’s case law shows that reparation for international crimes cannot be left to individualised forms of compensation. The Court has either adopted a combination of individual compensation measures and collective rehabilitative reparations,49 or it has awarded only collective reparations.50 Most interestingly, in the latter case the Court clarified that the award of only collective reparations was consistent with the Statute because of the absence of ‘an internationally recognised human right to a consideration of individual applications for reparations’.51 Significantly, the Court has not ruled on the existence of an individual right to reparation but on the right to have an individual application considered by the Court. This has even more far-​ reaching consequences because it denies the existence of a procedural right 45 46 47 48 49 50 51

ibid paras 217–​220. ibid para 222. Prosecutor v Lubanga (Judgment on the appeals against the Decision establishing the principles and procedures to be applied to reparations of 7 August 2012, Annex A) ICC-​01/​ 04-​01/​06-​3129-​AnxA 03-​03-​2015 1/​20 NM A A2 A3 (3 March 2015) paras 46–​47. Prosecutor v Lubanga (n 42) para 239. Prosecutor v Katanga (Order for Reparations pursuant to Article 75 of the Statute) ICC-​01/​ 04-​01/​07 (24 March 2017) para 306; Prosecutor v Al Mahdi (n 44) para 104. Prosecutor v Lubanga (n 47) paras 140–​156. ibid para 155.

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that is indispensable to enforce the substantive right to reparation. Thus, despite the existence of a substantive individual right to reparation, an international court can award collective reparations without taking into account individual applications for reparation. Finally, the icc is not alone in putting the emphasis on the inadequacy of individualised measures of reparation with respect to international crimes. In the judgment that closed the long Habré saga, the Extraordinary African Appeals Chamber considered that Le seul octroi de réparations individuelles en l’espèce pourrait s’avérer lacunaire, notamment en raison de la capacité financière nécessairement limitée tant de l’Accusé que du Fonds et du fait que seul un certain nombre de victimes fera les démarches devant ce dernier (…) la Chambre d’assises d’appel estime que les réparations collectives et morales participeraient par nature à une réponse plus globale aux préjudices subis par l’ensemble des victimes.52 Thus, it seems that the collective nature of international crimes and the damage they cause to entire communities explain the need to take into account at the reparation stage both individual and collective/​State forms of relief and even a certain preference that can be afforded to collective reparations alone. In the end, the main reasons why reparation for international crimes cannot be left to individualised remedies is simply the need to address all the consequences of such tragic events in a non-​discriminatory way. Going back to universal civil jurisdiction, this means that reparations for international crimes cannot be left exclusively to universal civil jurisdiction, that the latter arguably is not the most appropriate means of redress for international crimes, and that it has to be coordinated with such others means. 5

The Limited Role of Universal Civil Jurisdiction

The final consequence of the foregoing analysis is that universal civil jurisdiction can only have a limited role in providing reparation for international crimes. A  number of situations can be taken into account in which the exercise of universal civil jurisdiction must be coordinated with other possible

52

Procureur c Habré, Chambre africaine extraordinaire d’assises d’appel judgment (27 April 2017) para 842, http://​www.chambresafricaines.org/​, last visited 31 December 2019.

116 Bonafè remedies at the national or international level for the commission of the same international crimes. Such scenarios systematically show the importance of collective reparation. The first scenario is that in which jurisdiction can be exercised by two municipal courts, one on the basis of universal civil jurisdiction, and the other on a territorial or extraterritorial basis. This means that the alternative is basically between a court having no link with the claim and another court that does have a link with the case. If we rely on the Naït-​Liman case, and many other national precedents,53 priority should be accorded to the latter court. In any case, the action remains an individual action that ignores the injury suffered by other victims of the same crimes. Even assuming that all victims obtain full compensation by the national court, universal civil jurisdiction leaves open two questions: the collective (group and state) damages caused by the international crime remain to be addressed, and it is highly unlikely that the responsible State would be in a position to pay such amounts of compensation to each and every victim. Second, reparation for international crimes can be sought before a municipal court that is asked to exercise universal civil jurisdiction despite the existence of an internationally negotiated settlement. Independently of the existence of an explicit waiver of outstanding claims in that settlement, the question is whether the municipal court should decline jurisdiction. In this case, universal civil jurisdiction cannot be entirely ruled out, apparently depending on the types of damages that the international settlement actually takes into account, so that the claimant would not receive compensation twice. Arguably, the international settlement could prevent the municipal court from exercising universal jurisdiction if the damage of the claimant is included in that settlement, although the victim has not received full compensation. Admittedly, this scenario is not entirely uncontroversial as witnessed by a proposal, which was eventually rejected, to include in the 2015 idi resolution on universal civil jurisdiction a clause according priority to internationally negotiated settlements over judicial redress.54 Similar uncertainties are raised by the corresponding scenario in which universal civil jurisdiction is invoked despite the existence of national reparations schemes.55 53 54 55

See in particular Kiobel v Royal Dutch Petroleum Co 569 US 108 (2013); Bouzari v Islamic Republic of Iran [2004] CCA OJ no 2800 Docket no C38295. See also Article 2 of the idi resolution on universal civil jurisdiction (n 13). Annuaire de l’Institut de Droit International (n 13) 200. Transitional justice literature is divided on whether individual judicial redress should be precluded or should be maintained when collective reparation schemes are adopted. See the diverging positions of P De Greiff, ‘Justice and Reparations’, in De Greiff (n 30) 451 and J

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In other circumstances, universal civil jurisdiction may have to be coordinated with the exercise of jurisdiction at the international level. According to the idi resolution on universal civil jurisdiction priority is to be accorded to international judicial settlement.56 The reason seems straightforward; that settlement will provide comprehensive reparations; although this may not correspond to full compensation, it will address all the damages caused by the commission of international crimes. Interestingly, the icc has been more cautious and, in principle, it did not exclude that national reparations could be awarded in addition to those decided at the international level.57 It remains to be seen whether municipal courts would be willing to exercise universal civil jurisdiction in such circumstances.58 The opposite perspective has also been taken into account. The icc accepted that ‘decisions by other bodies, whether national or international, do not affect the rights of victims to receive reparations pursuant to Article 75 of the Statute. However, notwithstanding those general propositions, the Court is able to take into account any awards or benefits received by victims from other bodies in order to guarantee that reparations are not applied unfairly or in discriminatory manner’.59 6

Conclusions

Universal civil jurisdiction is an extremely attractive notion. It carries with it the promise of full and individualised compensation for each and every victim of international crimes. In addition, its application does not require the establishment of new mechanisms at the international level but can rely on existing municipal remedies. In practice, however, the exercise of universal civil jurisdiction has always been exceptional, and this tendency does not seem to change. Indeed, universal civil jurisdiction risks to raise more problems than it solves. A number of reasons have been explored that may explain why the reality of reparations for international crimes leaves so little room to this form of purely private justice.

56 57 58 59

Malamud-​Goti and L Sebastiàn Grosman, ‘Reparations and Civil Litigation: Compensation for Human Rights Violations in Transitional Democracies’, in De Greiff (n 30) 539. See Article 2 of the idi Resolution on universal civil jurisdiction (n 13). Prosecutor v Lubanga (n 42) para 210. Sarei and others v Rio Tinto plc and Rio Tinto Limited US App 550 F.3d 822 (9th Cir. 2008) ildc 1225 (US 2008) para 30. Prosecutor v Lubanga (n 47) para 9.

118 Bonafè The main conclusion is that the general context in which international crimes are committed and that gives rise to reparation claims should never be forgotten. If universal civil jurisdiction implies the existence of an individualised form of compensation, then it can only be conceived as part of public justice; it should not obliterate –​and may even give way to –​other means that can provide comprehensive and collective reparations for international crimes. After all, redress for such gross violations ‘means that full justice should be done vis-​à-​vis society as a whole, the persons responsible and the victims. Compensatory measures form part of a policy of justice’.60

Bibliography

Abtahi H, ‘Types of Injury in Inter-​State Reparation Claims: A Guide for the International Criminal Court’ (2015)30 Canadian J L Society 256. Bonafè BI, ‘La Corte europea dei diritti dell’uomo e la giurisdizione universale in materia civile’ (2016) 99 RDI 1113. Bucher A, ‘La compétence universelle civile’ (2014) 372 Recueil des Cours de l’Académie de Droit international 9. Bufalini A, ‘On the Power of a State to Waive Reparation Claims Arising from War Crimes and Crimes against Humanity’ (2017) 77 ZaörRV 447. D’Argent P, ‘Des règlements collectifs aux règlements individuels (collectivisés)?’ (2003) 5 Intl L FORUM du droit int 10. De Greiff P, ‘Justice and Reparations’, in P De Greiff (ed), The Handbook of Reparations (oup 2006) 153. Donovan FD and Roberts A, ‘The Emerging Recognition of Universal Civil Jurisdiction’ (2006) 100 AJIL 142. Evans M, The Right to Reparation in International Law for Victims of Armed Conflict (cup 2014). Gaja G, ‘Alternative ai controlimiti rispetto a norme internazionali generali e a norme dell’Unione Europea’ (2018) 101 RDI 1045. Jain AG, ‘Universal Civil Jurisdiction in International Law’ (2015) 55 Indian J Intl L 209. Malamud-​Goti J, Grosman LS, ‘Reparations and Civil Litigation: Compensation for Human Rights Violations in Transitional Democracies’, in P De Greiff (ed), The Handbook of Reparations (oup 2006) 539. 60

unchr (Sub-​Commission), ‘Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedom, Final report submitted by Mr. Theo van Boven, Special Rapporteur’ (2 July 1993) UN Doc E/​CN.4/​Sub.2/​1993/​8 para 88.

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Mégret F, ‘The Case for Collective Reparations before the International Criminal Court’, in J Wemmers (ed), Reparation for Victims of Crimes against Humanity (Routledge 2014) 171. Mora PD, ‘The Alien Tort Statute after Kiobel: The Possibility for Unlawful Assertions of Universal Civil Jurisdiction still Remains’ (2014) 63 ICLQ 699. Parlett K, ‘Universal Civil Jurisdiction for Torture’ (2007) 4 Eur Human Rights L Rev 385. Reydams L, ‘Universal Jurisdiction in Context’ (2005) 99 ASIL Proceedings 118. Rosenfeld F, ‘Collective Reparations for Victims of Armed Conflict’ (2010) 92 IRRC 731. Scelle G, ‘Le phénomène juridique du dédoublement fonctionnel’, in W Schätzel and HJ Schlochauer (eds), Rechtsfragen der internationalen Organization. Festschrift für Hans Wehberg (Klostermann 1956) 324. Tomuschat C, ‘State Responsibility and the Individual Right to Compensation before National Courts’, in A Clapham and P Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict (oup 2014) 811. Vagts D and Murray P, ‘Litigating the Nazi Labor Claims: The Path Not Taken’ (2002) 43 Harvard Intl L J 503. Van Schaack B, ‘Justice without Borders: Universal Civil Jurisdiction ’(2005) 112 ASIL Proceedings 120. Wallach D, ‘The Irrationality of Universal Civil Jurisdiction’ (2015) 46 Georgetown J Intl L 803.

chapter 6

Limitations to the Exercise of Civil Jurisdiction in Areas Other Than Reparation for International Crimes Fabrizio Marongiu Buonaiuti 1

The Absence of Limitations under General Rules of International Law as Concerns the Exercise of Jurisdiction over Civil Disputes

Whether States face limitations in the exercise of jurisdiction in respect of civil suits is a recurring topic in the field of international civil procedure and has arisen well ahead of the moment when it came into consideration with respect to reparation for international crimes.1 The issue has often been discussed in connection with the question whether, and subject to which conditions, States are permitted to resort to ‘exorbitant’ grounds of jurisdiction, ie to make provision for their courts to entertain cases which present only a tenuous connection with the forum.2 Otherwise stated, whether, absent any specific rules in 1 See, among others, G Morelli, Diritto processuale civile internazionale (2nd edn, cedam 1954) 87; FA Mann, ‘The Doctrine of Jurisdiction in International Law’ (1964) 111 Recueil des Cours de l’Académie de Droit International 9, 19 ff; Id, ‘The Doctrine of International Jurisdiction Revisited After Twenty Years’ (1984) 186 Recueil des Cours de l’Académie de Droit International 9, 26 ff; I Szászy, International Civil Procedure. A Comparative Study (Sijthoff 1967) 290 ff; M Giuliano, La giurisdizione civile italiana e lo straniero (2nd edn, Giuffré 1970) 6 ff; M Akehurst, ‘Jurisdiction in International Law’ 46 British Ybk Intl L (1972–​73) 145, 170 ff; A Miaja de la Muela, ‘Les principes directeurs des règles de compétence terrioriale des tribunaux internes en matière de litiges comportant un élément international’ (1972) 135 Recueil des Cours de l’Académie de Droit International 11, 21 ff; A Davì, ‘Sui limiti delle giurisdizione italiana in materia di divorzio’ (1975) 58 RDI 666, 688 ff; R Geimer, Internationales Zivilprozeßrecht (5th edn, Schmidt 2005)  43 ff; T Pfeiffer, Internationale Zuständigkeit und prozessuale Gerechtigkeit (Klostermann 1995) 26 ff; J Bertele, Souveränität und Verfahrensrecht (Mohr Siebeck 1998) 221 ff. 2 See in this respect K Nadelmann, ‘Jurisdictionally Improper Fora’, in K Nadelmann, A von Mehren and JN Hazard (eds), XXth Century Comparative and Conflicts Law –​Legal Essays in Honour of Hessel E Yntema (Sijthoff 1961), reprinted in K Nadelmann, Conflict of Laws: International and Interstate –​Selected Essays by Kurt H. Nadelmann (Nijhoff 1972) 222; P Schlosser, ‘Jurisdiction in International Litigation –​The Issue of Human Rights in Relation to National Law and to the Brussels Convention’ (1991) 74 RDI 5; R Geimer, ‘Verfassung, Völkerrecht und internationales Zivilverfahrensrecht’ (1992) 33 ZfRV 321, 401 ff; Pfeiffer (n 1) 523 ff; C Focarelli, ‘The Right of Aliens Not to be Subject to So-​Called  “Excessive  Civil Jurisdiction” ’, in B

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international conventions or regional instruments, States are free, as a matter of general international law, to determine the scope of the jurisdiction of their courts. It is generally assumed that international customary rules fail to limit the ability of States to assert their jurisdiction over disputes that present but a tenuous connection with the forum, and rather content themselves with prohibiting coercive action on other States’ territory.3 Thus, whenever a State or its officials are sued before the courts of a foreign State, customary rules prevent the latter from interfering with the internal affairs of other States and require, on that basis, that immunity be afforded, subject to appropriate conditions, to the State or the officials concerned.4 Apart from those exceptional circumstances, the point is generally made that customary international law does not restrict the ability of domestic courts to entertain civil disputes involving foreign nationals or, more broadly, private subjects, regardless of the nature and intensity of the ties between the disputed matter and the forum.5 Against this backdrop, the issue arises of whether a State may deny recognition to a judgment given in a State unconnected, or only poorly connected, with the dispute.6 Here, too, absent any applicable international convention or regional instrument, each State is free in principle to style as restrictively as it pleases its rules on the recognition and enforcement of foreign judgments.7 As

3

4

5 6 7

Conforti and F Francioni (eds), Enforcing International Human Rights in Domestic Courts (Nijhoff 1997) 441; Bertele (n 1) 221 ff; D Fernández Arrojo, ‘Exorbitant and Exclusive Grounds of Jurisdiction in European Private International Law: Will They Ever Survive?’, in H-​P Mansel et al (eds), Festschrift für Erik Jayme (Vol 1, Sellier 2004) 169. As acknowledged by the Permanent Court of International Justice in The Case of the SS «Lotus» (France v Turkey) (Judgment) pcij Rep Series A no 10, 18 where the Permanent Court had stated that the rule forbidding the exercise of sovereign powers in other States’ territories did not imply of itself the exclusion of the power of domestic courts to exercise jurisdiction in the State’s own territory, even in relation to facts having taken place abroad or concerning persons or assets not subject to the State’s sovereignty. As regards immunities under general international law, see generally, among others, H Fox, The Law of State Immunity (oup 2002) 11 ff, 19, and A Orakhelashvili, ‘State Immunity from Jurisdiction between Law, Comity and Ideology’, in A Orakhelashvili (ed), Research Handbook on Jurisdiction and Immunities in International Law (Elgar 2017) 151. See, in addition to the literature above (n 1), for a recent overview of the current standpoint, A Orakhelashvili, ‘State Jurisdiction in International Law: Complexities of a Basic Concept’, in Orakhelashvili (ed), Research Handbook (n 4) 1. R Quadri, ‘La giurisdizione sul cittadino nel nuovo codice di procedura civile’ (1941) 33 RDI 3, 6 ff. See, on the variety of solutions concerning the recognition and enforcement of foreign judgments, making it difficult to establish the existence of general rules of international law in this respect, among others, Akehurst (n 1) 232 ff; L Condorelli, La funzione del riconoscimento di sentenze straniere (Giuffré 1967) 122 ff.

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a matter of fact, domestic rules in this area normally provide for a review of the grounds on which the jurisdiction of the foreign court was based; therefore, recognition may be denied on the ground that the latter court asserted jurisdiction in spite of an insufficient connection between the case and the forum.8 2

The Exclusion of Exorbitant Fora under the EU Instruments on Jurisdiction

Limitations to the exercise of jurisdiction in respect of civil actions presenting a tenuous connection to the forum are prescribed, instead, under international conventions or regional instruments governing jurisdiction and the enforcement of judgments in civil and commercial matters. The most significant example is provided by the 1968 Brussels Convention, concluded by the Member States of the European Economic Community, as it then was, with the aim to foster the achievement of the fundamental freedoms of the Single Market.9 While Article 220 eec Treaty contemplated the conclusion of an agreement addressing solely questions of recognition and enforcement of judgments, the negotiators of the Convention deemed it helpful to also lay down uniform rules on direct jurisdiction. The recognition and enforcement of judgments across the Member States would have otherwise been limited because of the divergence of the grounds of jurisdiction contemplated under their respective domestic rules.10 Nonetheless, the negotiators considered it appropriate to limit the application of such uniform rules on jurisdiction to cases featuring a connection with 8

9

10

See generally on the topic, among others, G Morelli, ‘Circa l’indagine sulla competenza del magistrato estero nel giudizio di delibazione’ (1927) 19 RDI 1; E Bartin, Principes de droit international privé (Vol I, Domat-​Montchrestien 1930) 315 ff; R Geimer, Zur Prüfung der Gerichtsbarkeit und der internationalen Zuständigkeit bei der Anerkennung ausländischer Urteile (Gieseking 1966) 67 ff; V Moissinac Massénat, Les conflits de procédures et de decisions en droit international privé (lgdj 2007) 251 ff. G Droz, Compétence judiciaire et effets des jugements dans le marché commun (Étude de la convention de Bruxelles du 27 septembre 1968) (Dalloz 1972)  8 ff; M Weser, Convention communautaire sur la compétence judiciaire et l’éxécution des decisions (cidc  –​ Pedone 1975) 204 ff. With reference to the debates which preceded the Convention, see, among others, A  Bülow, ‘Vereinheitliches internationales Zivilprozessrecht in der Europäischen Wirtschaftsgemeinschaft. Der Entwurf eines Abkommens über die internationale Zuständigkeit, die Anerkennung und die Vollstreckung gerichtlicher Entscheidungen’ (1965) 29 RabelsZ 473, 478 ff. See also the ‘Report on the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters’, by P Jenard [1979] OJ C59/​1, 7.

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the Contracting States, namely, as a general rule, cases brought against defendants domiciled in any such State; in principle the application of domestic rules of jurisdiction to other cases was not affected. In fact, Contracting States’ courts could not found their jurisdiction on any of the domestic grounds singled out as exorbitant, whenever the defendant was domiciled in a Contracting State.11 Conversely, while the successors of the 1968 Brussels Convention, ie the Brussels I and, particularly, the Brussels I bis Regulations, progressively and partially broadened the personal scope of the uniform rules of jurisdiction set forth therein,12 they failed to affect the ability of Member States to rely on their domestic grounds of jurisdiction, including the exorbitant ones, in cases involving defendants domiciled in a third country.13 The resulting inconsistency, alongside the inherent complexity of the coexistence of different sets of rules,14 ultimately brought to a different approach in recent EU legislation on jurisdiction. In fact, EC Regulation no 4/​2009 on Maintenance Obligations, EU 11

12 13 14

Cf Article 3(2) Brussels Convention. See the Report by Jenard (n 10) 19 ff. The same rule moved into Article 3(2) of Council Regulation (EC) 44/​2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters [2001] OJ L12/​1 (Brussels I), with the sole difference that the list of excluded grounds of jurisdiction was placed in an annex to the Regulation. A  similar solution has been retained under Article 5(2) of Regulation (EU) 1215/​2012 of the European Parliament and of the Council of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Recast) [2012] OJ L351/​ 1 (Brussels I bis), which refers in this respect to the rules of jurisdiction which Member States are under a duty to communicate to the European Commission pursuant to Article 76(1)(a) of the same Regulation. See P Vlas, ‘Article 5’, in U Magnus and P Mankowski (eds), Brussels I bis Regulation. Commentary (Otto Schmidt 2016) 113. As with choice of court agreements pursuant to Article 25 and with the protective rules of jurisdiction concerning consumer contracts and individual contracts of employment, under Article 18(1), and Article 21(2) of the Regulation. Cf art 4(2) Brussels Convention, on which see the Jenard Report (n 10) 20 ff, and, likewise, art 4(2) EC Regulation no 44/​2001 and, currently, art 6(2) EU Regulation no 1215/​2012. See, on the latter, P Vlas, ‘Article 6’, in Magnus and Mankowski (eds), Brussels I bis (n 11) 120. The debate concerning, first, a proposed amendment of the jurisdiction rules in matrimonial matters embodied in Council Regulation (EC) 2201/​2003 of 27 November 2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters of Parental Responsibility, Repealing Regulation (EC) 1347/​2000 [2003] OJ L338/​1 (Brussels II bis) and, later, the recast of the Brussels I Regulation, highlighted the desirability of overcoming such state of affairs. See, with particular regard to the European Commission’s proposal for the latter, com(2010) 748 final, of 14 December 2010, A Bonomi, ‘Sull’opportunità e le possibili modalità di una regolamentazione comunitaria della competenza giurisdizionale applicabile erga omnes’ (2007) 43 RDIPP 313; F Pocar, ‘Faut-​il remplacer le renvoi au droit national par des règles de uniformes dans l’article 4 du règlement no. 44/​2001?’, in Vers des nouveaux équilibres entre ordres juridiques. Liber amicorum Hélène Gaudemet-​Tallon (Dalloz 2008)  573; J Weber,

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Regulation 650/​2012 on Matters of Succession and EU Regulations 2016/​1103 and 1104 on Matrimonial Property Regimes and The Property Consequences of Registered Partnerships, leave no room for domestic rules and rather provide for uniform rules of subsidiary jurisdiction to complement the ordinary rules set forth in those same instruments.15 The rules of subsidiary jurisdiction apply in those circumstances where the ordinary rules do not apply, namely because of the weak ties between the dispute and any Member State of the Union.16 Interestingly, those subsidiary jurisdiction rules generally come with a rule on forum necessitatis.17 The latter rule, inspired by similar provisions found in domestic private international law legislations,18 applies where neither the

15

16

17 18

‘Universal Jurisdiction and Third States in the Reform of the Brussels I Regulation’ (2011) 75 RabelsZ 619. Cf Article 6 of Council Regulation (EC) 4/​2009 of 18 December 2008 on Jurisdiction, Applicable Law, Recognition and Enforcement of Decisions and Cooperation in Matters Relating to Maintenance Obligations [2009] OJ L7/​1; Article 10 of Regulation (EU) 650/​ 2012 of the European Parliament and of the Council of 4 July 2012 on Jurisdiction, Applicable law, Recognition and Enforcement of Decisions and Acceptance and Enforcement of Authentic Instruments in Matters of Succession and on the Creation of a European Certificate of Succession [2012] OJ L201/​107; Article 10 of Council Regulation (EU) 2016/​1103 of 24 June 2016 Implementing Enhanced Cooperation in the Area of Jurisdiction, Applicable Law and the Recognition and Enforcement of Decisions in Matters of Matrimonial Property Regimes [2016] OJ L183/​1; Article 10 of Council Regulation (EU) 2016/​1104 of 24 June 2016 Implementing Enhanced Cooperation in the Area of Jurisdiction, Applicable Law and the Recognition and Enforcement of Decisions in Matters of the Property Consequences of Registered Partnerships[2016] OJ L183/​30. As regards subsidiary jurisdiction under EC Regulation no 4/​2009, see M Castellaneta and A Leandro, ‘Il regolamento CE n. 4/​2009 relativo alle obbligazioni alimentari’ (2009) 32 Le nuove leggi civili commentate 1051, 1073 ff. Concerning EU Regulation no 650/​2012, see F Marongiu Buonaiuti, ‘Article 10’, in A Calvo Caravaca, A Davì and H-​P Mansel (eds), The EU Succession Regulation. A Commentary (cup 2016) 186. As to EU Regulations 2016/​1103 and 2016/​1104, see N Joubert, ‘La dernière pierre (provisoire?) à l’édifice du droit international privé européen en matière familiale. Les règlements du 24 juin 2016 sur les régimes matrimoniaux et les effets patrimoniaux des partenariats enregistrés’ (2017) 106 Rev crit dr int priv 1, 15. cf Article 7 EC Regulation no 4/​2009; Article 11 EU Regulation no 650/​2012; Article 11 EU Regulation 2016/​1103 and EU Regulation 2016/​1104. Reference is made, among others, to Article 3 of the Swiss Federal Statute on Private International Law (ldip), on which see S Othenin-​Girard, ‘Quelques observations sur le for de necessité en droit international privé suisse’ (1999) 88 Rev suisse dr int eur 251; P Volken, ‘Art. 3’, in D Girsberger et  al (eds), Zürcher Kommentar zum IPRG (2nd edn, Schulthess 2004) 48; Article 11 of the Belgian code of private international law, on which see A  Nuyts, ‘Article 11’, in J Erauw et  al (eds), Het Wetboek internationaal Privaatrecht becommentarieerd –​Le code de droit international privé commenté (Intersentia/​Bruylant 2006) 64. A broader comparative survey is provided by V Rétornaz and B Volders, ‘Le for de nécessité: tableau comparatif et évolutif’ (2008) 97 Rev crit dr int priv 225.

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ordinary nor the subsidiary jurisdiction rules confer jurisdiction on the courts of any Member State. Their purpose is to enable the courts of a Member State presenting a sufficient connection with the case to hear a dispute which the claimant could not bring, or could not reasonably be expected to bring, in a third country with which the case is, instead, closely connected.19 3

The Exclusion of Exorbitant Grounds of Jurisdiction in the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments

The exclusion of exorbitant grounds of jurisdiction is at the same time a distinctive feature of the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters.20 Differently from the more ambitious draft of the late 1990s,21 the final text sets out a list of acceptable grounds of jurisdiction which make a judgment issued in a Contracting State eligible for recognition under the Convention.22 Article 6 also contemplates one exclusive basis of jurisdiction, namely as regards disputes concerning rights in rem in immovable property. This means that only judgments given in the Contracting State specified in Article 6 are eligible for recognition and enforcement under the Convention, while judgments given in other Contracting States are to be denied recognition, no matter what domestic rules may provide.

19

On the rule on forum necessitatis, as set forth in EU instruments, see P Franzina, ‘Sul forum necessitatis nello spazio giudiziario europeo’ (2009) 92 RDI 1121; G Rossolillo, ‘Forum necessitatis e flessibilità dei criteri di giurisdizione nel diritto internazionale privato nazionale e dell’Unione europea’ (2010) 2 Cuad der transnl 403, 413 ff; F Marongiu Buonaiuti, ‘Article 11’, in Calvo Caravaca, Davì and Mansel (eds) (n 16) 199; Joubert (n 16) 15. 20 . 21 Regarding the initial project see Hague Conference on Private International Law, ‘International jurisdiction and foreign judgments in civil and commercial matters, Report drawn up by C Kessedjian, Preliminary document no 7 of April 1997’, and ‘Report on the preliminary draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters, drawn up by P Nygh and F Pocar, Preliminary document no 11 of August 2000’, both available at (last accessed 31 December 2019). See also R Brand, ‘The 1999 Hague Preliminary Draft Convention Text on Jurisdiction and Judgments: A View from the United States’, in F Pocar and C Honorati (eds), The Hague Preliminary Draft Convention on Jurisdiction and Judgments (CEDAM 2005), 3; A Borrás, ‘The 1999 Hague Preliminary Draft Hague Convention on Jurisdiction, Recognition and Enforcement of Judgments: Agreements and Disagreements’, ibid 41. 22 Article 5.

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Even though the final text of the Covention does not include a ‘black list’ of prohibited grounds of jurisdiction, as envisaged in the initial draft of 1999,23 the aim pursued remains largely the same. In fact, a judgment given in a Contracting State based on a ground of jurisdiction which does not reveal a sufficient connection between the court of origin and the case, will find its recognition and enforcement in another Contracting State under the Convention precluded. Since the Convention is only concerned with the recognition and enforcement of judgments, not with direct jurisdiction, Contracting States will not be precluded from exercising jurisdiction based on a ground other than those accepted under the Convention itself. Nonetheless, the parties will not be able to rely on the Convention in seeking the recognition of the ensuing judgment elsewhere; moreover, as noted, such recognition shall be excluded altogether in cases where the exclusive ground contemplated under Article 6 has been violated.24 4

The Self-​Restraint of National Legislatures and Domestic Courts as Concerns Exorbitant Grounds of Jurisdiction

Ultimately, the exclusion of exorbitant grounds of jurisdiction under international conventions and regional texts, alongside with the increased concern for the requirements of due process in the the allocation of jurisdiction,25 has also come to influence domestic rules on jurisdiction and their interpretation by domestic courts. The reform of the rules governing jurisdiction in civil disputes brought about in Italy by the Private International Law Statute (Law no 218 of 31 May 1995) provides an illustration of that trend. The old rules were replaced by an entirely new set of provisions largely inspired by the 1968 Brussels Convention and by the underlying actor sequitur forum rei principle26. Most notably 23 24 25 26

cf Preliminary Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters (n 21) Article 18, and Report (n 21) 78 ff. See Hague Conference on Private International Law, ‘Judgments Convention:  Revised Preliminary Explanatory Report by F Garcimartín and G Saumier. Preliminary Document no 10 of May 2018’, 34. See below Section 5. See G Broggini, ‘L’influenza del modello convenzionale nella formulazione di norme comuni di diritto internazionale privato e processuale’, in F Salerno (ed), Convenzioni internazionali e legge di riforma del diritto internazionale privato (CEDAM 1997)  177; G Gaja, ‘Le convenzioni internazionali e le nuove norme sulla giurisdizione e il riconoscimento delle sentenze straniere’ (1997) 51 Riv trim dir proc civ 823. On the impact of other EU instruments and international conventions on the Italian rules of private international

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for the present purposes, the Statute abrogated Article 4(4) of the Italian code of civil procedure. This created a forum reciprocitatis, meaning that a foreigner could be sued in Italy, on the basis of reciprocity, in situations where an Italian could have been sued in the country of nationality of the foreigner in question. One left-​over of the old Italian rules on civil jurisdiction is to be found in the second sentence of Article 3(2) of the Statute. This provides that, in matters other than those regulated, at that time, by the 1968 Brussels Convention, jurisdiction of Italian courts exists whenever a court in Italy would be entitled to hear a case pursuant to the domestic rules on venue, ie the rules on the allocation of cases among Italian courts, as set out in the code of civil procedure. The latter rules, designed for domestic cases, enable the claimant, in some circumstances, to bring proceedings before the courts of his own domicile (forum actoris).27 Some argued that this is hardly consistent with the standards of procedural fairness vis-​à-​vis the defendant as applied in international cases.28 Similar developments have taken place, through the evolution of case law rather than legislative reform, in France. By two landmark judgments of 2006 and 2007 the Cour de cassation changed its views on the so called privilège de juridiction embodied in Articles 14 and 15 of the French Civil Code. Article 14 provides that foreigners may be sued in France in respect of obligations contracted abroad with a French national, whereas under Article 15 French courts have jurisdiction over disputes brought against French nationals even when the case is about obligations contracted abroad between the French defendant and a foreigner.29 The French Supreme Court held that the exorbitant fora mentioned above are not exclusive in nature and that, accordingly, they do

27 28

29

law in the area of family law, see A Davì, ‘Il diritto internazionale privato italiano della famiglia e le fonti di origine internazionale o comunitaria’ (2002) 85 RDI 861. Article 18(2) of the Italian code of civil procedure provides that, when the defendant is neither domiciled nor resident in Italy, his abode is not there, or is unknown, proceedings may be brought before the court of the place of residence of the plaintiff. It is accordingly generally assumed that such a rule cannot be relied upon whenever the courts of another Member State would be vested of jurisdiction under the rules now embodied in the Brussels I bis Regulation, or under any other EU regulation adopted in the field of judicial cooperation in civil matters, nor shall it be relied upon in those cases where the same Law no 218/​1995 providing for the reform of the Italian system of private international law dictates specific rules of jurisdiction. See further F Marongiu Buonaiuti, ‘Giurisdizione italiana’, in Enciclopedia del diritto  –​Annali (Vol viii, Giuffré 2015)  481, 537 ff. See generally P Kinsch, ‘Droits de l’homme, droits fondamentaux et droit international privé’ (2005) 318 Recueil des Cours de l’Académie de Droit International 9, 37 ff.

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not preclude the recognition of foreign judgments delivered against French nationals in cases falling under the circumstances contemplated therein.30 A similar result has long since been achieved, on a case-​by-​case basis, in common law jurisdictions contemplating in turn rather exorbitant grounds of jurisdiction; notably, in England, the possibility of founding jurisdiction purely on the service of the act instituting proceedings on the person of the defendant when the latter is even occasionally present in England,31 or, in most of the United States, on a broad interpretation of the defendant’s ‘doing business’ in the State concerned.32 The doctrine of forum non conveniens played a crucial role in preventing those rules from producing unfair results. Under the doctrine of forum non conveniens, subject to national peculiarities, a court vested with jurisdiction in respect of a dispute might refrain from exercising it in those cases where the courts of another State, equally vested with jurisdiction, would be a more appropriate venue for the dispute.33 The discretion thus vested on the seised court has for a long time been regarded with skepticism in civil law jurisdictions, based on the assumption that rules governing jurisdiction should be clear and predictable and impose a duty on the designated courts to decide the case as to its substance.34 This notwithstanding, the evolution

30 31 32

33

34

The rulings, dated 26 May 2006 and 22 May 2007, are reproduced in (2006) 133 jdi 1377 and (2007) 134 jdi 956. See in general on this development G Cuniberti, ‘The Liberalization of the French Law of Foreign Judgments’ (2007) 56 iclq 931, 934 ff. See, for a general illustration, J Hill, ‘The Exercise of Jurisdiction in Private International Law’, in P Capps, M Evans and S Konstantinidis (eds), Asserting Jurisdiction, International and European Legal Perspectives (Hart 2003) 39, 57 ff. On the evolution of the law of jurisdiction in the United States see, in particular, A Lowenfeld, International Litigation and the Quest for Reasonableness (oup 1996) 46, 52 ff, and A Nuyts, ‘Due Process and Fair Trial: Jurisdiction in the United States and in Europe Compared’, in A Nuyts, N Watté (eds), International Civil Litigation in Europe and Relations with Third States (Bruylant 2005) 157, 175 ff. As under the seminal definition of the rule set out by the House of Lords in its well known judgment in Spiliada Maritime Corporation v Cansulex [1987] AC 460. See, among others, P Beaumont, ‘Great Britain (National Report)’, in J Fawcett (ed), Declining Jurisdiction in Private International Law (oup 1995) 207. See also A Nuyts, L’exception de forum non conveniens. Étude de droit international privé comparé (Bruylant 2003) 183 ff, and F Marongiu Buonaiuti, Litispendenza e connessione internazionale. Strumenti di coordinamento tra giurisdizioni statali in materia civile (Jovene 2008) 9 ff. See H Gaudemet-​Tallon, ‘Le “forum non conveniens”, une ménace pour la convention de Bruxelles?’ (1991) 80 Rev crit dr int priv 491, and P Huber, Die englische Forum-​non-​ conveniens-​Doktrin und ihre Anwendung im Rahmen des Europäischen Gerichtsstands  –​ und Vollstreckungsübereinkommen (Duncker & Humblot 1994) 81 ff. See also, extensively, C Chalas, L’exercice discrétionnaire de la compétence juridictionnelle en droit international privé (puam 2000) 38 ff. For a reconsideration of the issue in light of recent developments,

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of case law in most legal systems contemplating such a doctrine has gradually contributed to reduce the margin of unpredictability inherent in the doctrine. This has been achieved by clarifying the factors relevant for the purposes of assessing the appropriateness of another forum, and by underlining that the said doctrine should not be resorted to in those cases where a decision to decline jurisdiction would undermine the right of the plaintiff to a fair trial.35 The traditionally reserved position of civil law systems towards judicial discretion, epitomized in the judgment given by the ecj in Owusu,36 has finally given way to a cautious opening to discretion in continental Europe, as well. For instance, some EU instruments dealing with jurisdiction provide for the transfer of cases from a court sitting in a Member State to a court sitting in a different Member State, based on an assessment that the latter appears to be in a better position to rule on the dispute.37 Lastly, a significant extent of judicial discretion is also inherent in the rules on lis pendens and related actions before third country courts under Articles 33 and 34 of the Brussels I bis Regulation.38

35

36

37

38

see P Beaumont, ‘Forum non conveniens and the EU Rules on Conflicts of Jurisdiction: A Possible Global Solution’ (2018) 107 Rev crit dr int priv 447. cf particularly the House of Lords judgment in Lubbe v Cape Plc [2000] 1 wlr 1545. See, among others, P Muchlinski, ‘Corporations in International Litigation:  Problems of Jurisdiction and the United Kingdom Asbestos Cases’ (2001) 50 ICLQ 1; F Marongiu Buonaiuti, ‘Forum non conveniens e art. 6 della Convenzione europea dei diritti dell’uomo’ (2001) 84 RDI 420; H Fox, ‘Approaches of Domestic Courts to the Assertion of International Jurisdiction’, in Capps, Evans, Konstantinidis (eds) (n 31) 175, 178 ff. ecj, Case C-​281/​02 Owusu v Jackson [2005] ECLI:EU:C:2005:120. See among others R Fentiman, ‘Civil Jurisdiction and Third States: Owusu and After’ (2006) 43 CML Rev 705; J Harris, ‘Stays of Proceedings and the Brussels Convention’ (2005) 54 ICLQ 933; T Hartley, ‘The European Union and the Systematic Dismantling of the Common Law of Conflict of Laws’ ibid 813, 824 ff. See also G Cuniberti, ‘Forum non conveniens and the Brussels Convention’ (2005) 54 ICLQ 973. Article 15 EC Regulation no 2201/​2003 (Brussels II bis) enables a Member State court seised of an action in matters of parental responsibility to stay its proceedings and invite the parties to bring their action before the courts of another Member State which would be better placed to hear the case in the interest of the child, or directly request such courts to assume jurisdiction. Cf, now, Article 12 of Council Regulation (EU) 2019/​1111 of 25 June 2019 on Jurisdiction, the Recognition and Enforcement of Decisions in Matrimonial Matters and the Matters of Parental Responsibility, and on International Child Abduction (Recast) [2019] OJ L178/​1. See also Article 6(a) EU Regulation no 650/​2012, whereby a Member State court having jurisdiction in matter of succession may decline jurisdiction at the request of one of the parties in favour of the courts of the Member State whose law has been chosen by the deceased as applicable to the succession, when the latter courts are better placed to hear the case. See F Marongiu Buonaiuti, ‘Lis alibi pendens and Related Actions in the Relationships with the Courts of Third Countries in the Recast of the Brussels I Regulation’ (2013/​2014)

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Exorbitant Grounds of Jurisdiction and the Requirements of Fair Trial

To some extent, the reluctance of national courts to assert jurisdiction in respect of disputes presenting a weak connection with the forum has been driven by a concern for fair trial, particularly as a consequence of the developments in the European Court of Human Rights’ (ECtHR) case law concerning Article 6 of the European Convention on Human Rights (ECHR). In this respect, the allocation of jurisdiction may call for consideration from two angles. The former relates to the right of access to a court, a right which, though not expressly stated in the Convention, has been read into it by the European Court as early as in Golder, where the Court held that the very fact of having access to a court stands as a prerequisite for the enjoyment of the procedural rights more specifically guaranteed under Article 6(1).39 Actually, the ECtHR has never addressed directly the question of the compatibility of the rules governing jurisdiction over cross-​border cases with the right of access to a court. In the only remote case where the issue was reportedly addressed by the (then existing) European Commission of Human Rights, the latter concluded that the right of access to a court does not extend to the point of encompassing a right to bring the case before a particular court of the plaintiff’s choice.40 Nonetheless, an obiter of the same decision pointed to the importance of a sufficient connection between the case and the forum for the exercise of jurisdiction to comply with the relevant general principles of international law.41 While, as noted, it remains questionable whether specific limitations to jurisdiction may be found in general international law, it is a fact that even those countries whose legislation provides for a forum necessitatis42 normally

39

40 41

42

15 Ybk Priv Intl L 87, 94 ff; P Franzina, ‘Lis pendens Involving a Third Country under the Brussels I-​bis Regulation: An Overview’ (2014) 50 RDIPP 23, 27 ff. Golder v United Kingdom (ECtHR, 21 February 1975) Series A no 18, para 35. See, among others, Kinsch (n 29)  43 ff; F Marchadier, Les objectifs généraux du droit international privé à l’épreuve de la Convention européenne des droits de l’homme (Bruylant 2007) 43 ff; L Kiestra, The Impact of the European Convention on Human Rights on Private International Law (Asser Press –​Springer 2014) 96 ff. App no 6200/​73 (Commission Decision, 13 May 1976), unpublished, extract in Council of Europe, Digest of Strasbourg Case-​Law relating to the European Convention on Human Rights (Article 6) (Vol 2, Heymanns 1984) 269. ibid second sentence of the extract of the decision. See Kiestra (n 39) 127 f. See also F Marongiu Buonaiuti, ‘La tutela del diritto di accesso alla giustizia e della parità delle armi tra i litiganti nella proposta di revisione del regolamento n. 44/​2001’, in A Di Stefano and R Sapienza (eds), La tutela dei diritti umani e il diritto internazionale (Editoriale Scientifica 2012) 350 ff. See above, Section 2, text to n 18.

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require that a sufficient connection exist between the forum and the dispute, so as to prevent domestic courts from ruling on disputes totally unconnected with the forum. In the Naït-​Liman v Switzerland case43 the ECtHR considered such a requirement, specifically as contemplated under Article 3 of the Swiss Federal Statute on Private International Law, as a legitimate limitation to the right of access to a court claimed by the plaintiff in respect of damages suffered as a consequence of acts of torture.44 EU legislation providing for a forum necessitatis similarly prescribes the said requirement.45 The ‘sufficient connection’ requirement has not only been regarded as inherent in the right of access to a court. It has also been seen as reflecting, more generally, a concern for procedural fairness. Fairness requires the burden inherent in the cross-​border nature of a dispute not to fall entirely or predominantly on one of the parties, as would be likely to happen where jurisdiction is established on the basis of an exorbitant rule, capable of opening the doors of the courts chosen by the plaintiff based on an extremely tenuous connection of the case with the forum, so as to make this unilateral choice of venue hardly foreseeable by the defendant.46 Equally critical would be the application of rules on jurisdiction like the French privilège de juridiction mentioned

43 44

45

46

Naït-​Liman v Switzerland App no 51357/​07 (ECtHR, 21 June 2016) para 106 ff; Naït-​Liman v Switzerland (ECtHR, GC, 15 March 2018) para 173 ff. See, with regard to the Chamber judgment, BI Bonafé, ‘La Corte europea dei diritti dell’uomo e la giurisdizione universale in materia civile’ (2016) 99 RDI 1100; C Ryngaert, ‘From Universal Civil Jurisdiction to Forum of Necessity: Reflections on the Judgment of the European Court of Human Rights in Naït-​Liman’ (2017) 100 RDI 782; with regard to the Grand Chamber judgment, E Benvenuti, ‘Quale tutela del diritto di accesso alla giustizia civile per le vittime di gravi violazioni dei diritti umani? Riflessioni a margine della decisione della Grande Camera della Corte europea nel caso Naït-​Liman’ [2018] 3 OIDU 322. See above, Section 2, text to nn 17–​19. The said EU instruments envisage the requirement whereby a sufficient connection must exist between the dispute and the Member State whose courts are seized in order for these to exercise jurisdiction under those rules on forum necessitatis; this led the ECtHR Grand Chamber to conclude that the limitation of the claimant’s right of access to justice imposed by the reliance of the Swiss Federal Tribunal on the corresponding requirement contemplated under Article 3 of the Swiss Federal Statute on Private International Law was justified. Cf Naït Liman v Switzerland (GC) (n 43) paras 91–​93, 207, noting that, not differently from Article 3 of the Swiss Federal Statute, the forum necessitatis rules embodied in the EU instruments refrain from specifying in what the required sufficient connection shall consist, thereby impliedly leaving it to the appreciation of the domestic court seized. See, for a discussion of the importance of achieving a balance between the positions of the parties even at the stage of allocating jurisdiction in respect of a cross-​border dispute, Kinsch (n 29) 47, 65 ff; Marchadier (n 39) 203 ff; see also Marongiu Buonaiuti, ‘La tutela’ (n 41) 352.

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above; albeit abstractly foreseeable as based on subjective elements normally known to both parties, such rules still convey a discrimination to the detriment of the defendant.47 In fact, despite their apparent neutrality, the rules of jurisdiction may in fact place one of the parties, namely the defendant who is compelled to follow the choice of venue unilaterally made by the plaintiff, at a disadvantage for having to defend the case before a forum with which he is less familiar.48 The weight of this argument, which is based on the principle of equality of arms between the litigants, enshrined in Article 6 echr,49 should not be overestimated. It is often inevitable that litigation takes place in a forum that is less convenient for one of the parties. That holds true also within the European judicial area, where some of the instruments in force afford the plaintiff a right to choose between alternative fora, in the exercise of which the latter is left with a certain margin for that sort of speculative choice frequently labelled as forum shopping.50 Insofar as the choice allowed to the plaintiff is limited to fora presenting a substantial connection of some sort with the facts of the dispute –​so that the assertion of jurisdiction by the court seized is not unreasonable in terms of foreseeability by the defendant, nor capable of bringing about a discrimination on grounds which would be prohibited under the European

47

48

49

50

This criticality inherent in the said rules of the French law of jurisdiction has been highlighted particularly by D Cohen, ‘La Convention européenne des droits de l’homme et le droit international privé français’ (1989) 78 Rev crit dr int priv 451, 454 ff; Kinsch (n 29) 37 ff. As noted by Marchadier (n 39) 204, even if the procedural fairness of the trial is to be assessed having regard to the entire course of the proceedings; nonetheless a failure in guaranteeing the procedural fairness of proceedings as concerns the determination of the forum might be so fundamental as to affect the entire course of the proceedings. cf among others, stressing the importance of the said principle as inherent in the right to a fair trial guaranteed pursuant to Article 6 echr, Dombo Beheer BV v The Netherlands App no 14448/​88 (ECtHR, 27 October 1993) para 33; De Haes et Gijsels v Belgium App no 19983/​92 (ECtHR, 24 February 1997) para 53; Ankerl c Switzerland App no 17748/​91 (ECtHR, 23 October 1996) para 38. See, in this respect Kiestra (n 39) 134 ff, arguing that since the guarantee of a fair trial under Article 6(1) echr has necessarily to be afforded to both the plaintiff and the defendant and presupposes accordingly a balance between the opportunities offered to each, it should operate as a limit to making available to the plaintiff the tools for putting into place abusive procedural strategies. From this perspective, the author considers that the broad opportunities for putting into place similar strategies left open by the Brussels I Regulation, as in force at the time, would need to be reviewed. See, in a similar vein, Kinsch (n 29) 89 ff, questioning the fairness vis-​à-​vis the defendant of the extremely broad spectrum of alternative fora offered to the plaintiff in matters of divorce, legal separation or marriage annulment under EC Regulation no 2201/​2003.

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Convention itself –​equality of arms between the litigants would not be affected in a material way.51 6

Concluding Remarks

Ultimately, the States’ reluctance to entertain disputes only loosely connected with the forum may be witnessed both in respect of actions for the reparation of prejudice suffered as a result of international crimes and in respect of cases outside that field. The Grand Chamber judgment of the European Court of Human Rights in Naït-​Liman offers a portrait of the existing legal scenario in either domain, by pointing on the one side to the limited number of States contemplating universal civil jurisdiction as such  –​that is, independently of the exercise of universal criminal jurisdiction, in their domestic law52 –​and to the dubious foundation in an international treaty such as the UN Convention against Torture of a rule obliging Contracting States to exercise jurisdiction in respect of acts of torture in the absence of a territorial or personal link.53 On the other side, the comparative survey carried out by the Grand Chamber concerning the domestic rules on forum necessitatis jurisdiction reveals that the latter institution is known, today, only to a minority of European States. Moreover, the idea of a forum of necessity has only recently been accepted in a non-​European country such as Canada, where it is subject to strict conditions, and is unknown, generally, to common law countries,54 where a different approach to the allocation of jurisdiction tends to prevail. As noted, this approach relies on the doctrine of forum non conveniens in order to bar the exercise of jurisdiction in cases where the rather broad grounds contemplated by the common law would lead to asserting jurisdiction in respect of disputes insufficiently connected with the forum.55 Furthermore, in discussing the content of the rules on forum necessitatis currently set forth by national legislations and in EU Law, the Grand Chamber correctly noted that those rules generally subject the availability of a forum necessitatis to the existence of a

51

52 53 54 55

See Marchadier (n 39) 211, pointing to the existence of a sufficient connection between the dispute and the forum as a broadly accepted prerequisite in the setting out of jurisdiction rules, likely to guarantee in most cases an acceptable degree of fairness between the parties as concerns the allocation of jurisdiction. Naït-​Liman v Switzerland (GC) (n 43) paras 176–​187. ibid paras 188–​198. ibid paras 199–​202. ibid paras 90, 200. See also above Section 4, text to n 33 ff.

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sufficient connection with the dispute, with the clear intent of preventing the courts seized under such rules from deciding disputes totally unrelated with the forum.56 In substance, the prevailing position of States appears to be inspired, generally, by a significant measure of self-​restraint both with reference to the exercise of universal civil jurisdiction for international crimes and in respect of the exercise of jurisdiction as concerns ordinary civil disputes.57 In the former domain, this reflects a concern for avoiding any undue interference with the internal affairs of other States in cases where the forum State’s interests would appear less directly involved,58 as well as for averting the risk of incurring violations of the immunities of States or of certain State officials, in respect of which the existence of an exception for international crimes it is still controversial.59 In the second domain, where the concerns relating to the involvement of other States or their officials are normally absent, the reluctance of States mirrors, arguably, the duty to ensure respect for the principle of equality of arms between the litigants inherent in the guarantees of a fair trial. This principle, as noted, would risk being endangered by granting to the plaintiff excessively broad opportunities as to the choice of the venue of litigation.60 Reluctance, it is submitted, is further grounded on a concern for effectiveness

56 57 58

59

60

Naït-​Liman v Switzerland (GC) (n 43) para 207. See, particularly, Fox, ‘Approaches of Domestic Courts’ (n 35) 176. See also above Section 1. See, with regard to the different State interests pursued through the exercise, respectively, of universal civil rather than criminal jurisdiction, F Berman, ‘Jurisdiction: The State’, in Capps, Evans and Konstantinidis (eds) (n 31) 3, 12 ff; concerning the considerations justifying the assertion of universal civil jurisdiction and the limitations deriving from the need not to bring prejudice to inter-​State relationships, A Bucher, ‘La compétence universelle civile’ (2014) 372 Recueil des Cours de l’Académie de Droit International 9, 101 ff; Id, ‘La compétence universelle civile en matière de réparation pour crimes internationaux –​ Universal civil jurisdiction with regard to reparation for international crimes’, Rapport (2015) 76 Annuaire idi, Session de Tallin, 89, 92; on the need to balance the imperative of sanctioning and deterring the commission of international crimes and providing an avenue for victims to pursue reparation against the respect due for other States’ sovereignty AG Jain, ‘Universal Civil Jurisdiction in International Law’ (2015) 55 Indian J Intl L 209. See Bucher, ‘La compétence universelle civile’ (n 58)  90 ff, underlining the interplay between the assertion of universal civil jurisdiction over actions for reparation of international crimes and issues, particularly, of State immunity, and considering that more frequently such actions are addressed against foreign States rather than their officials personally, with regard, inter alia, to the icj rulings in Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Judgment) [2002] icj Rep 2002, 3, and in Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) (Judgment) [2012] icj Rep 99, and, in respect of State immunity, paras 80–​108. See above Section 5.

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and procedural economy, whereby it would be unreasonable for the courts of a given State to embark on the trial of an action unrelated with the forum, with the ensuing risk that the resulting judgment would be likely denied recognition or enforcement in the foreign country or countries presenting more substantial connections with the dispute.61

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Giuliano M, La giurisdizione civile italiana e lo straniero (2nd edn, Giuffré 1970). Harris J, ‘Stays of Proceedings and the Brussels Convention’ (2005) 54 ICLQ 933. Hartley T, ‘The European Union and the Systematic Dismantling of the Common Law of Conflict of Laws’ (2005) 54 ICLQ 813. Hill J, ‘The Exercise of Jurisdiction in Private International Law’, in P Capps, M Evans and S Konstantinidis (eds), Asserting Jurisdiction, International and European Legal Perspectives (Hart 2003) 39. Huber P, Die englische Forum-​non-​conveniens-​Doktrin und ihre Anwendung im Rahmen des Europäischen Gerichtsstands –​und Vollstreckungsübereinkommen (Duncker & Humblot 1994). Jain AG, ‘Universal Civil Jurisdiction in International Law’ (2015) 55 Indian J Intl L 209. Joubert N, ‘La dernière pierre (provisoire?) à l’édifice du droit international privé européen en matière familiale. Les règlements du 24 juin 2016 sur les régimes matrimoniaux et les effets patrimoniaux des partenariats enregistrés’ (2017) 106 Rev crit dr int priv 1. Kiestra L, The Impact of the European Convention on Human Rights on Private International Law (Asser Press –​Springer 2014). Kinsch P, ‘Droits de l’homme, droits fondamentaux et droit international privé’ (2005) 318 Recueil des Cours de l’Académie de Droit International 9. Lowenfeld A, International Litigation and the Quest for Reasonableness (oup 1996). Mann FA, ‘The Doctrine of Jurisdiction in International Law’ (1964) 111 Recueil des Cours de l’Académie de Droit International 9. Mann FA, ‘The Doctrine of International Jurisdiction Revisited After Twenty Years’ (1984) 186 Recueil des Cours de l’Académie de Droit International 9. Marchadier F, Les objectifs généraux du droit international privé à l’épreuve de la Convention européenne des droits de l’homme (Bruylant 2007). Marongiu Buonaiuti F, ‘Article 10’, in A Calvo Caravaca, A Davì and H-​P Mansel (eds), The EU Succession Regulation. A Commentary (cup 2016) 186. Marongiu Buonaiuti F, ‘Article 11’, in A Calvo Caravaca, A Davì and H-​P Mansel (eds), The EU Succession Regulation. A Commentary (cup 2016) 199. Marongiu Buonaiuti F, ‘Forum non conveniens e art. 6 della Convenzione europea dei diritti dell’uomo’ (2001) 84 RDI 420. Marongiu Buonaiuti F, ‘Giurisdizione italiana’, in Enciclopedia del diritto –​Annali (Vol VIII, Giuffré 2015). Marongiu Buonaiuti F, ‘La tutela del diritto di accesso alla giustizia e della parità delle armi tra i litiganti nella proposta di revisione del regolamento n. 44/​2001’, in A Di Stefano and R Sapienza (eds), La tutela dei diritti umani e il diritto internazionale (Editoriale Scientifica 2012) 345. Marongiu Buonaiuti F, ‘Lis alibi pendens and Related Actions in the Relationships with the Courts of Third Countries in the Recast of the Brussels I Regulation’ (2013/​2014) 15 Ybk Priv Intl L 87.

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Marongiu Buonaiuti F, Litispendenza e connessione internazionale. Strumenti di coordinamento tra giurisdizioni statali in materia civile (Jovene 2008). Miaja de la Muela A, ‘Les principes directeurs des règles de compétence terrioriale des tribunaux internes en matière de litiges comportant un élément international’ (1972) 135 Recueil des Cours de l’Académie de Droit International 11. Moissinac Massénat V, Les conflits de procédures et de decisions en droit international privé (lgdj 2007). Morelli G, ‘Circa l’indagine sulla competenza del magistrato estero nel giudizio di delibazione’ (1927) 19 RDI 1. Morelli G, Diritto processuale civile internazionale (2nd edn, cedam 1954). Muchlinski P, ‘Corporations in International Litigation: Problems of Jurisdiction and the United Kingdom Asbestos Cases’ (2001) 50 ICLQ 1. Nadelmann K, ‘Jurisdictionally Improper Fora’, in K Nadelmann, A von Mehren and JN Hazard (eds), XXth Century Comparative and Conflicts Law –​Legal Essays in Honour of Hessel E. Yntema (Sijthoff 1961), reprinted in K Nadelmann, Conflict of Laws: International and Interstate –​Selected Essays by Kurt H. Nadelmann (Nijhoff 1972) 222. Nuyts A, ‘Article 11’, in J Erauw et al (eds), Het Wetboek internationaal Privaatrecht becommentarieerd –​Le code de droit international privé commenté (Intersentia/​Bruylant 2006) 64. Nuyts A, ‘Due Process and Fair Trial: Jurisdiction in the United States and in Europe Compared’, in A Nuyts and N Watté (eds), International Civil Litigation in Europe and Relations with Third States (Bruylant 2005). Nuyts A, L’exception de forum non conveniens. Étude de droit international privé comparé (Bruylant 2003). Orakhelashvili A, ‘State Immunity from Jurisdiction between Law, Comity and Ideology’, in A Orakhelashvili (ed), Research Handbook on Jurisdiction and Immunities in International Law (Elgar 2017) 151. Orakhelashvili A, ‘State Jurisdiction in International Law: Complexities of a Basic Concept’, in A Orakhelashvili (ed), Research Handbook on Jurisdiction and Immunities in International Law (Elgar 2017) 1. Othenin-​Girard S, ‘Quelques observations sur le for de necessité en droit international privé suisse’ (1999) 88 Rev suisse dr int eur 251. Pfeiffer T, Internationale Zuständigkeit und prozessuale Gerechtigkeit (Klostermann 1995). Pocar F, ‘Faut-​il remplacer le renvoi au droit national par des règles de uniformes dans l’article 4 du règlement no 44/​2001?’, in Vers des nouveaux équilibres entre ordres juridiques. Liber amicorum Hélène Gaudemet-​Tallon (Dalloz 2008). Quadri R, ‘La giurisdizione sul cittadino nel nuovo codice di procedura civile’ (1941) 33 RDI 3.

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Rétornaz V and Volders B, ‘Le for de nécessité: tableau comparatif et évolutif’ (2008) 97 Rev crit dr int priv 225. Rossolillo G, ‘Forum necessitatis e flessibilità dei criteri di giurisdizione nel diritto internazionale privato nazionale e dell’Unione europea’ (2010) 2 Cuad der transnl 403. Ryngaert C, ‘From Universal Civil Jurisdiction to Forum of Necessity: Reflections on the Judgment of the European Court of Human Rights in Naït-​Liman’ (2017) 100 RDI 782. Schlosser P, ‘Jurisdiction in International Litigation –​The Issue of Human Rights in Relation to National Law and to the Brussels Convention’ (1991) 74 RDI 5. Szászy I, International Civil Procedure. A Comparative Study (Sijthoff 1967). Vlas P, ‘Article 5’, in U Magnus and P Mankowski (eds), Brussels I bis Regulation. Commentary (Otto Schmidt 2016) 112. Vlas P, ‘Article 6’, in U Magnus and P Mankowski (eds), Brussels I bis Regulation. Commentary (Otto Schmidt 2016) 115. Volken P, ‘Art. 3’, in D Girsberger et al (eds), Zürcher Kommentar zum IPRG (2nd edn, Schulthess 2004) 48. Weber J, ‘Universal Jurisdiction and Third States in the Reform of the Brussels I Regulation’ (2011) 75 RabelsZ 619. Weser M, Convention communautaire sur la compétence judiciaire et l’éxécution des decisions (cidc –​ Pedone 1975).

chapter 7

Residual Jurisdiction under the Brussels I bis Regulation

An Unexpected Avenue to Address Extraterritorial Corporate Human Rights Violations Mariangela La Manna 1

Introduction

For decades already, the transnational illicit conduct of multinational corporations (hereinafter mnc s) has been in the spotlight.1 The human rights violations that can be committed by companies include violations of economic and social rights2 and may, in particular circumstances, amount to international crimes proper.3 In fact, though mnc s may not be the direct addressees of human rights obligations under international law,4 they are

1 2

3

4

Ever since the early 1980s Union Carbide gas plant disaster in Bhopal, India, still the most evocative example of corporate misconduct, more and more corporate human rights abuses occurred. Several corporations involved in the extractive sector met with legal trouble arising out of oil spills causing serious environmental damage and affecting local populations’ right to health, right to food, right to an adequate standard of living and to a safe environment, like in the Kiobel case, the textbook example of corporate human rights violations. In this case, the massive oil spills caused by the activities of Royal Dutch Shell’s subsidiaries in the Niger delta seriously affected the basic rights of the local population, poisoning the crops and the water sources, not to mention the alleged complicity of the corporate actor in the summary execution by Nigerian local authorities of 9 Ogoni protesters. The case has been brought before US jurisdictions with little success and is currently being adjudicated by Dutch jurisdictions. Some companies were involved in even more serious violations, likely to occur in conflict zones or within the territory of States suffering from an institutional collapse. Occasionally, said violations would amount to international crimes, as with Unocal and Total, accused of having resorted to the Myanmar military regime to force people to work on the construction of a pipeline, and with Talisman, accused of being associated with the genocide in Sudan. In the traditional approach corporations are not deemed to be the addressees of obligations under human rights law. However, in the less dogmatic view embraced under most recent scholarship this may no longer the case. For a moderate and nuanced account see E De Brabandere, ‘Non-​State Actors and Human Rights. Corporate Responsibility and the Attempts to Formalize the Role of Corporations as Participants in the International Legal

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004408579_009

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nonetheless in the position to perform human rights violations, either directly or indirectly.5 Either way, corporations need to be held accountable for the violations they commit. Victims must have an opportunity to access justice in order to obtain reparation for the damage suffered, as required by the momentous UN Guiding Principles on Business and Human Rights (hereinafter ungp s or Principles).6 As stated in ungp 26, appropriate steps should be taken by States ‘to ensure the effectiveness of domestic judicial mechanisms when addressing business-​related human rights abuses, including considering ways to reduce legal, practical and other relevant barriers that could lead to a denial of access to remedy’.7 Access to remedy is in fact one of the pillars the Principles are premised on. Remedies may be either judicial or non-​judicial in nature.8 The former obviously include civil litigation regarding the liability arising from the concerned mnc tortious acts or omissions. Though a growing number of States include in their domestic legal systems provisions on corporate criminal liability, the issue of criminal responsibility of corporations remains, overall, underdeveloped, and bringing a civil suit (namely for monetary reparation) is often the only way to have the responsibility of a corporation ascertained.9

5 6

7

8

9

System’, in J D’Aspremont (ed), Participants in the International Legal System. Multiple Perspectives on Non-​State Actors in International Law (Routledge 2011) 268; for a more radical stocktaking see V Lowe, ‘Corporations as International Actors and International Law Makers’ (2004) 14 Italian Ybk Intl L 23, and SR Ratner, ‘Corporations and Human Rights: A Theory of Legal Responsibility’ (2001) 111 Yale L J 443, 461. On the conceptual justifications of corporate human rights obligations see DG Arnold, ‘Corporations and Human Rights Obligations’ (2016) 1 Business Human Right J 255. The latter occurs through complicity, aiding and abetting, conspiracy, vicarious liability, and other lesser forms of responsibility. JG Ruggie, Special Representative of the Secretary-​General on the issue of human rights and transnational corporations and other business enterprises, ‘Guiding Principles on Business and Human Rights:  Implementing the United Nations ‘Protect, Respect and Remedy’ Framework’, annexed to his final report to the Human Rights Council (A/​HRC/​ 17/​31), which eventually endorsed the Principles in its resolution 17/​4 of 16 June 2011. On the genesis and implications of ungp 26 see JG Ruggie, Just Business. Multinational Corporations and Human Rights (Norton & Company 2013) 116 ff; J Drimmer and LJ Laplante, “The Third Pillar. Remedies, Reparations, and the Ruggie Principles’, in J Martin and KE Bravo, The Business and Human Rights Landscape. Moving Forward, Looking Back (cup 2015) 316. See respectively D Augenstein and N Jägers, ‘Judicial Remedies: The Issue of Jurisdiction’ and K Häusler et al, ‘Non-​judicial Remedies: Company-​based Grievance Mechanisms and International Arbitration’, both in JJ Álvarez Rubio and K Yannibas (eds), Human Rights in Business. Removal of Barriers to Access to Justice in the European Union (Routledge 2017) 7 and 78 respectively. This is the general rule in continental Europe. However, see A Herzberg, ‘Kiobel and Corporate Complicity –​Running with The Pack’ (2014) 107 AJIL Unbound 41; A Espinosa González

142 La Manna Crucial in this respect is the identification of the court with jurisdiction to rule on the victim’s claims. Bringing the case before the courts of the State where the violation was materially committed (eg, where the polluting activities were carried out) may be good for the purposes of evidence gathering and for the affected communities’ reconciliation, whereas it might be problematic in other regards. This occurs, in particular, where the violations for which redress is sought were committed in those States whose justice systems are affected by a structural lack of independence or by widespread and systematic corruption.10 Until recently, US courts provided the ideal venue for extraterritorial human rights litigation against corporations, thanks to the universal civil jurisdiction clause in the Alien Torts Claims Act (atca).11 However, the restrictive interpretation of the statute performed by the US Supreme Court in Kiobel, expressly carving out purely external situations from the scope of US courts’ jurisdiction, makes this path much more difficult to walk upon today.12 This paper examines the avenues for judicial redress available for victims of corporate abuses. After briefly reviewing the inherent difficulties in holding corporations accountable (2), the analysis tackles the avenues available in Europe, both in the harmonized jurisdictional regime established under Regulation (EU) 1215/​2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (the Brussels I bis Regulation) (3) and through the jurisdictional grounds contemplated by the domestic rules of the Union’s Member States (4). Some conclusions on the overall rationale of the system together with speculations on future developments will finally be provided (5). 2

Substantive and Procedural Issues Related to the So-​Called ‘Corporate Veil’

Whereas within every family, parents will always be liable for the conduct of their children and under an obligation to compensate for the damage the

10

11 12

and M Sosa Navarro, ‘Corporate Liability and Human Rights. Access to Criminal Judicial Remedies in Europe’, in A Bonfanti (ed), Business and Human Rights in Europe. International Law Challenges (Routledge 2019) 223. It is also true that in those legal orders that admit it, victims may also file civil claims to be joined to criminal complaints against natural persons. A Sanger, ‘Transnational Corporate Responsibility in Domestic Courts: Still out of Reach’ (2018) 113 AJIL Unbound 4; see also Amnesty International, ‘Injustice Incorporated. Corporate Abuses and the Human Right to Remedy’ (2009) available at (last visited on 31 December 2019). 28 USC § 1350. Kiobel v Royal Dutch Petroleum Co 569 US 108 (2013).

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latter may cause, at least until their coming of age, so far as corporations are concerned, the parent company is not automatically liable for the acts and omissions of its subsidiaries, even less so with reference to its partners in the supply chain.13 Corporations may indeed be a single entity from the economic perspective, but in legal terms the principle of separate corporate personality, positing that each and every component of the group is entitled to a legal personality of its own, holds sway.14 This means that each entity is distinct and autonomous and may very well be incorporated in a different jurisdiction than the one where the leader of the group is established. Parent companies, in fact, are often headquartered in Europe or the US, while the local operating subsidiaries are often incorporated under the laws of the host State.15 One corollary of separate personality is the principle of separate corporate liability, whereby the conduct of a subsidiary will not be attributed to the parent company. The attribution of legal responsibility among the members of a corporate group abides by the separate legal personality approach also when the parent is the main stakeholder controlling the subsidiary, and even when the parent is the sole shareholder, wholly owning the subsidiary. In a group, thus, the corporate shield makes the allocation of liability an extremely tricky task.16 Piercing the corporate veil, ie providing evidence that the subsidiary is merely a puppet entity, is then what needs to be done in order to establish whether a local subsidiary acts on behalf of the parent company. This may not always be easy to do. An alternative to lifting the corporate veil may be to circumvent it, focusing on acts and omissions of the parent instead of addressing the subsidiary. This involves bringing a claim against the parent company for its negligence (ie lack of duty of care), as the UK jurisdictions did in the Asbestos cases.17 As a consequence of the peculiar structure of mnc s, the criteria for the allocation of jurisdiction to hear civil claims for corporate human rights abuses

13

R Mares, ‘Limits of Supply Chain Responsibility:  A Critical Analysis of Corporate Responsibility Instruments’ (2010) 79 Nordic J Intl L 193. This is common in the garment industry and no less problematic, as the Rana Plaza, Kik, Zara cases confirm. 14 See A Cassese (ed by M Frulli), Diritto internazionale (3rd edn, Il Mulino 2017) 225; C Bright, ‘The Civil Liability of the Parent Company for the Acts or Omissions of the Subsidiary. The Example of the Shell Cases in the UK and the Netherlands’, in Bonfanti (ed), Business and Human Rights (n 9) 212. 15 M Anderson, ‘Transnational Corporations and Environmental Damage: Is Tort Law the Answer?’ (2001–​2002) 41 Washburn L J 399. 16 M Koebele, Corporate Responsibility Under the Alien Tort Statute. Enforcement of International Law through US Torts Law (Nijhoff 2009) 279. 17 R McCorquodale, ‘Waving not Drowning:  Kiobel Outside the United States’ (2013) 107 AJIL 846.

144 La Manna may not be obvious. The inherently transnational nature of mnc s, which are registered under the laws of one State, while carrying out their operations in the territory of other States, coupled with the separate liability principle, makes squaring the circle all the more complicated. How are the rules on international jurisdiction equipped to deal with tort litigation involving a (potentially) global defendant, operating in several jurisdictions, through subsidiaries, affiliated entities, and mere contractors? The adoption of a treaty on business and human rights, called for by ngo s and scholars alike,18 could really represent an adequate solution, albeit a costly, time-​consuming and politically sensitive one, as the ongoing work of the Human Rights Council on a draft treaty on the matter confirms.19 Thus, for the time being it makes sense to focus on the existing normative framework, which, though not fully equipped to address substantive issues of corporate group responsibility, may nonetheless provide some useful tools to hold corporations accountable. 3

The Role of the Domicile of the Defendant in the Overall Perspective of the Brussels I bis Regime

It is suggested that the US Supreme Court’s self-​restraint in the exercise of its extraterritorial jurisdiction may be compensated by a more active role of 18

19

International Centre for Trade Union Rights (ictur), ‘Removing Barriers to Justice. How a treaty on business and human rights could improve access to remedy for victims’, Report by D Blackburn, August 2017, available at (last accessed 31 Deccember 2019); O De Schutter, ‘Towards a New Treaty on Business and Human Rights’ (2016) 1 Business Human Rights J 41. Ever since 2013, the Human Rights Council has embraced the proposal of Ecuador, supported by many other countries, to formulate a binding treaty on corporations and human rights. It thus established an open-ended intergovernmental working group (oeigwg) charged with the specific task of elaborating an instrument. So far, two versions of a ‘Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises’ were released, in 2018 and 2019 respectively. In particular, while the first version, ie the ‘Zero Draft’, harboured under its Article 5 a provision on jurisdiction positing that only the forum commissi delicti and the forum of the domicile of the defendant could be admitted, the Revised Draft significantly widens the list of options for claimants, by accepting also the forum of the domicile of the victim (Article 7). For comments on the two drafts, see the special blog hosted by the online platform Business and Human Rights, available at (last accessed 31 December 2019).

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courts in other States, namely the Member States of the EU. For victims of corporate human rights abuses, the natural ‘safe harbour’ would thus be Europe,20 also by virtue of the EU’s policy on corporate human rights abuses. Not only is the European Union keen on the issue of access to a remedy for human rights violations in business,21 but it also promoted the implementation of the ungp s, emphasizing the remedial aspects involved. As a matter of EU law, jurisdiction over torts is governed by the Brussels I bis Regulation. The latter applies, generally, to ‘civil and commercial matters’. It lays down a comprehensive set of uniform rules on jurisdiction based on mutual trust among Member States, aimed at facilitating the mutual recognition of their judgments. The domicile of the defendant is the main rule for the allocation of jurisdiction under the Regulation.22 In proceedings against persons domiciled in the territory of a Member State, the application of the Brussels I bis Regulation is exclusive, meaning that Member States’ courts are prevented from asserting their jurisdiction based on such grounds as may be provided for in their domestic legislation.23 Conversely, Article 6 establishes that if a defendant is not domiciled in the territory of a Member State, the domestic rules on jurisdiction in force in the forum apply instead. Otherwise stated, the domestic rules on jurisdiction that would normally apply in matters within the scope of the Regulation play but a residual role, in the sense that they come into play only insofar as the Regulation itself so provides, ie, basically, vis-​à-​vis non-​EU domiciliaries. The notion of domicile applies both to natural and legal persons, albeit not in the same terms. Specifically, when it comes to legal persons, EU law cherishes 20 21

22

23

For a broad perspective on remedies in Europe, see generally essays collected in Álvarez Rubio and Yannibas (eds), Human Rights in Business (n 8)  as well as in Bonfanti (ed), Business and Human Rights (n 9). Opinion of the European Union Agency for Fundamental Rights on Improving Access to Remedy in the Area of Business and Human Rights, 1, 10 April 2017, available at (last accessed 31 December 2019); for a comment see J Grimheden, ‘Civil Litigation in Response to Corporate Human Rights Abuse: The European Union and Its Member States’ (2018) 50 Case Western Reserve J Intl L 235, 247. One needs to mention among many others eg tort jurisdiction under Article 7 establishing the locus delicti rule, or jurisdiction by connection under Article 8, whereby a person can be sued before the courts of the domicile of his co-​defendant(s) and also jurisdiction for insurance, consumer, and employment contracts, whereby the claimant, a weaker party in the contractual relationship, may sue the other party in the forum of his domicile, not to mention the 5 instances of exclusive jurisdiction provided for under Article 24, superseding the general rule laid down in Article 4. ecj, C-​281/​02 Owusu v Jackson [2005] ECLI:EU:C:2005:120.

146 La Manna its own, autonomous notion of ‘domicile’, which appears to be rather broad. Article 63 establishes that, with reference to legal persons, domicile should be understood to correspond to the ‘statutory seat’, the ‘central administration’, or the ‘principal place of business’ of the person in question. This implies, for instance, that a company incorporated in a third State (thereby having its statutory seat in that State) will still be regarded as having its domicile in the EU for the purposes of the Brussels I bis Regulation if it established that the centre of its administration is in a Member State; and, conversely, that a company whose statutory seat is in the EU should be deemed to be domiciled in the Union regardless of whether the business it carries out is predominantly located outside the Union, and regardless of whether the company’s core decisions are taken in a third country.24 Throughout the 1990s and early 2000s eg several civil complaints were brought against UK-​domiciled parent companies for lack of vigilance over their foreign subsidiaries. It is important to point out, though, that these cases did not amount to human rights litigation but were instead an example of common tort litigation for negligence, ie lack of care. In the so-​called Asbestos cases,25 UK domiciled companies were reproached a breach of their duty of care. Specifically, English courts considered the harm to have occurred in the UK, by virtue of the centralized decision-​making process of mnc s, whereby corporate group-​wide policies and practices are formulated by the parent company in its headquarter offices.26 In those cases, the defendant, thus, was the EU-​domiciled parent company, not the subsidiary. Therefore, the abovementioned cases are perfectly in line with the rules provided under Regulation 44/​2001,27 the predecessor of Regulation 1215/​2012, the defendants being fully fledged EU-​based corporations. Given the separation of legal entities in a corporate group, however, it is not enough for the parent company to be domiciled in a EU Member State, for the Brussels regime to apply to its subsidiaries, nor for the latter to make the object of civil claims in the forum of the parent company’s home State. Absent 24

See P Vlas, ‘Article 63’, in U Magnus, P Mankowski (eds), Brussels I  bis Regulation. Commentary (Otto Schmidt 2016) 993. 25 House of Lords, Lubbe v Cape PLC [2000] UKHL 41; Chandler v Cape PLC [2012] ewca Civ 525; see also P Muchlinski, ‘Corporations in International Litigation:  Problems of Jurisdiction and the United Kingdom Asbestos cases’ (2001) 50 ICLQ 1. 26 UK courts are competent to hear a tort case when the act or the omission that lead to harm occurred in the UK. 27 Council Regulation (EC) 44/​ 2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters [2001] OJ L12/​1.

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a breach of the duty of care on the part of the EU-​domiciled parent company, allowing claimants to bring a suit directly against the parent, there is thus no way for a foreign (ie extra EU) subsidiary to appear as a defendant before the courts of Member States. This normative situation is the source of many regrets among commentators and ngo s. The review of the Regulation 44/​ 2001 in view of its recast (which eventually occurred with the adoption of the Brussels I bis Regulation) was welcomed by some as an opportunity to enact a proper European Foreign Tort Claims Act.28 However, the original European Commission’s proposal to expand the reach of the Regulation by providing for uniform grounds of jurisdiction for non-​EU domiciliaries was eventually set aside.29 4

The (Indirect) Establishment of Residual Jurisdictional Grounds under the Brussels I bis Regulation

If Article 4 was a picture, then Article 6 would be its negative, covering the hypotheses which, due to the domicile of the defendant being outside the territory of the Union, do not fall in the scope of the former provision. Article 6 is in fact the one area in the Brussels regime where Member States are permitted to resort to their own domestic rules of jurisdiction, something the Regulation generally proscribes.30 The narrative of residual jurisdiction as the very last ‘fortress’ of unbridled discretionary power of Member States is not accurate, though, as the European Court of Justice (ecj) made clear in its 2006 Lugano Opinion.31 In particular, the Court stated that Article 4 of Regulation 44/​2001 ‘must be interpreted as meaning that it forms part of the system implemented by that regulation, since it resolves the situation envisaged by reference to the legislation of the 28 29 30

31

J Weber, ‘Universal Jurisdiction and Third States in the Reform of the Brussels I Regulation’ (2011) 75 RabelsZ 619; A Bonfanti, ‘Diritti umani e imprese multinazionali, dinanzi ai giudici europei: sulla revisione del Regolamento (CE) n. 44/​2001’ (2011) 47 RDIPP 697. There are more recent proposals for yet another recast of the Regulation, in order to allow extraterritorial corporate human rights cases. L Gillies, ‘Creation of Subsidiary Jurisdiction Rules in the Recast of Brussels I: Back to the Drawing Board?’ (2012) 8 J Private Intl L 489. See more broadly on the matter, in this volume, L Roorda and C Ryngaert, ‘Public International Law Constraints on the Exercise of Adjudicatory Jurisdiction in Civil Matters’ and F Marongiu Buonaiuti, ‘Limitations to the Exercise of Civil Jurisdiction in Areas Other than Reparation for International Crimes’. ecj, Opinion 1/​03, 7 February 2006.

148 La Manna Member State before whose court the matter is brought’.32 As odd as it may seem at first sight, Article 6 deals with situations covered by the Regulation, albeit indirectly, since the resort to domestic jurisdictional rules is only legitimate because (and insofar as) the Regulation itself so provides. In other words, the purpose of Article 6 is not to acknowledge that Member States are free to regulate jurisdiction as they deem fit when it comes to non-​EU domiciliaries. The situations to which the provision applies are among the situations that the Regulation governs, albeit in a peculiar fashion. Indeed, domestic courts are permitted to refer to the rules of the forum, but the application of those rules occurs, so to say, upon delegation on the part of the Union. Two implications arise from the stance that the Brussels regime should be conceived of as a ‘unified and coherent system of rules on jurisdiction’, covering also litigation involving persons domiciled outside the Union. The above stance implies, first, the need to reconceptualise domestic rules of jurisdiction as, functionally speaking, a subcategory of regional rules.33 It is way more than a simple matter of labels, though. In practical terms, in fact, the unity of the system may not be jeopardized by the conduct of Member States either refraining from exercising their residual jurisdiction or adopting grounds incompatible with EU law. If domestic rules on jurisdiction are an instrument of EU law, then they will need to comply with the latter and further the Union’s goals and policies, as secondary EU legislation is required to comply with primary EU law and advance the policies set forth thereunder. The reading endorsed by the Court of Justice in the Lugano Opinion entails that, within the realm of residual jurisdiction, Member States are not entirely free to resort to whichever rule they see fit.34 While they are not bound to replicate in their domestic systems the rules enacted by the EU, they cannot, acting under Article 6 of the Brussels I bis Regulation, completely disregard the requirements of primary EU law, including the Charter of Fundamental Rights of the European Union, the rules that bind the Union on the international plane and the common constitutional traditions of Member States. One further implication is that not only are Member States prevented from derogating primary EU law when making use of the freedom octroyée by the Union’s legislature 32 33 34

ibid para 148. Gillies (n 30) 496. A Nuyts, ‘General Report on Study on Residual Jurisdiction (Review of the Member States’ Rules concerning the “Residual Jurisdiction” of their courts in Civil and Commercial Matters pursuant to the Brussels I and II Regulations)’, 3 September 2007, available at (last visited 26 May 2020), acknowledges the potential for Member States’ subsidiary jurisdiction rules to jeopardize/​restrict the application of EU law.

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with Article 6 of the Brussels I bis Regulation, but they are also under the scrutiny of the Court of Justice. Clearly, this does not involve a harmonization of national jurisdictional grounds. These may well vary, as they in fact do, from one Member State to another. The diversity of national grounds is acknowledged, and preserved, by the Regulation. Rather, what the Court’s approach in the Lugano Opinion implies is that, no matter how different, national rules are only permitted to fill the gap left by Article 6 insofar as they are consistent with the principles of EU law and do not undermine its key policies. 5

Residual Jurisdiction as a Tool for a Greater Accountability of mnc s

With reference to residual jurisdiction in the domain of corporate litigation against non-​EU based defendants, there seems to be a potential trend on the verge of blossoming among Member States, that would favour the exercise of extraterritorial jurisdiction. More and more often, in fact, Member States provide for exorbitant grounds, ie bearing little or no nexus with the forum. One of them is forum necessitatis jurisdiction, a special ground provided for under the domestic private international law rules of a few Member States, the purpose of which is to prevent a denial of justice and guarantee the right to a fair trial established under Article 6 echr. Though so far never resorted to with reference to corporate-​related cases, in policy terms forum necessitatis jurisdiction could actually be a very effective ground for providing corporate victims with a forum. A more common technique in corporate tort litigation is forum connexitatis jurisdiction, ie the joinder of cases involving an EU-​based parent company and a non-​EU-​based subsidiary, whereby the EU-​based defendant works as an ‘anchor’, thus allowing the courts of the forum to exercise their jurisdiction over the foreign subsidiary.35 The so called ‘extended active personality jurisdiction’36 pursued by joining cases against the EU-​based parent company and the foreign subsidiary,37 is only triggered by domestic residual grounds, as cross-​referenced under Article 35

36 37

M Weller and A  Pato, ‘Local Parents as ‘Anchor Defendants’ in European Courts for Claims against Their Foreign Subsidiaries in Human Rights and Environmental Damages Litigation:  Recent Case Law and Legislative Trends’ (2018) 23 Unif L Rev 397, 410. The system is thoroughly described by L Roorda, ‘Adjudicate This! Foreign Direct Liability and Civil Jurisdiction in Europe’, in Bonfanti (ed), Business and Human Rights (n 9) 195. C Ryngaert, Jurisdiction in International Law (2nd edn, oup 2015) 140. Augenstein and Jägers (n 8) 31.

150 La Manna 6, and is not to be confused with instances of ‘ordinary connection’ between two or more EU-​domiciled defendants, provided for under Article 8 Brussels I bis Regulation. The UK and the Netherlands are especially confident with this approach.38 Oddly enough, the former Member State has been particularly active in the celebration of proceedings of the sort.39 Under UK law it is in fact possible to join the foreign subsidiary in the English proceedings against the parent company, provided the former is a necessary or proper party to a claim against the latter.40 The parent company’s UK domicile, thus, works as an ‘anchor’, grounding in the UK also jurisdiction against the subsidiary.41 No territorial connection whatsoever between the latter and the forum will, in fact, be needed. However, since this avenue is so broad as to be prone to abuses on the part of claimants, these will need to have a good arguable case against the parent company. Only then will the proper or necessary participation of the subsidiary as a defendant in the proceedings arise, as the subsequent brief case law review shows. In Vedanta, the English-​based mining corporation Vedanta Resources plc was the anchor defendant, used by plaintiffs as a magnet to attract in the forum its Zambian subsidiary Konkola Copper Mines (kcm), accused of having caused harm to the environment and jeopardized the right to health of nearly 2000 Zambian citizens, both miners and local residents, by discharging toxic substances in a river. The claimants did have a good arguable case against the parent, since they produced evidence confirming that the parent had formulated policies as well as management choices for the subsidiary. The case was adjudicated in April 2019, and the claim was successful.42 38

This is indeed surprising since both the UK and the Netherlands had presented briefs in the US Kiobel case whereby each maintained a very skeptical stance on extraterritorial jurisdiction. 39 E Aristova, ‘Tort Litigation against Transnational Corporations in the English Courts: The Challenge of Jurisdiction’ (2018) 14 Utrecht L Rev 6. 40 ibid 11. 41 The source is paragraph 3.1 (3) of Practice Direction 6B –​Service out of the jurisdiction where permission is required: ‘3.1 The claimant may serve a claim form out of the jurisdiction with the permission of the court under rule 6.36 where (…) (3) A claim is made against a person (“the defendant”) on whom the claim form has been or will be served (otherwise than in reliance on this paragraph) and –​(a) there is between the claimant and the defendant a real issue which it is reasonable for the court to try; and (b)  the claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim’, available at (last visited 31 December 2019). 42 UK Supreme Court, Vedanta Resources PLC and another (appellants) v Lungowe and others (Respondents) [2019] UKSC 20 (10 April 2019).

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The outcome of the 2018 Okpabi case was different.43 Claimants brought a civil claim for oil spills and pollution against the UK-​domiciled parent company, Shell, and its Nigerian subsidiary, Shell Petroleum Development Company of Nigeria (spdc), which they qualified as a necessary or proper party to the English proceedings. They were, however, unable to establish a prima facie case against the parent, not having managed to prove that the latter had performed a risk assessment and a follow-​up procedure with reference to its Nigerian subsidiary’s activities. Accordingly, since no reproach could be held against the parent company, no anchor defendant could be envisaged to help grounding the case against the subsidiary in the forum. This decision is quite controversial and has made the object of some skepticism among commentators, who pointed out the ‘unreasonably high burden on the claimants to establish an arguable case on the duty of care at the jurisdictional stage of proceedings’.44 The aaa v Unilever case was initiated following to even more dramatic events. The claim brought against the UK-​based mnc Unilever and its subsidiary managing a tea plantation in Kenya was in fact related to the massive ethnic violence outburst that ensued the 2007 general elections. The defendants had failed to protect the workers in the plantation against the highly predictable assaults performed against them by the ethnic majority. Even in this case, the claimants were deemed not to have a ‘good arguable case’ against the UK-​based defendant.45 One has to acknowledge that common law countries are sufficiently at ease with the procedural strategy of anchor defendants, while civil law countries significantly less so.46 However, in the Akpan case,47 initiated by a Nigerian farmer who had suffered from a massive oil spill in his farm,48 even the Netherlands 43

44 45 46 47

48

Court of Appeal (Civil Division), Okpabi and others v Royal Dutch Shell PLC and Shell Petroleum Development Company of Nigeria Ltd [2018] EWCA Civ 19 (14 February 2018). For a thorough accounting both of the facts of the case and of the Court’s reasoning see Weller and Pato (n 35) 400. Aristova (n 39) 16. Court of Appeal (Civil Division) AAA and others (Appellants) v Unilever PLC and Unilever Tea Kenya Limited (Respondents/​Cross-​Appellants) [2018] EWCA Civ 1532. McCorquodale (n 17) 849. District Court of The Hague, Akpan and Milieudefensie v Royal Dutch Shell PLC and Shell Petroleum Development Company of Nigeria Ltd, ECLI:NL:RBSGR:2013:BY9854 (30 January 2013); See also C Ryngaert, ‘Tort Litigation in Respect of Overseas Violations of Environmental Law Committed by Corporations:  Lessons from the Akpan v Shell Litigation in the Netherlands’ (2013) 8 McGill Intl Sust Dev L Policy J 245. See also Weller and Pato (n 35) 407–​410. For a brief summary of the fact to the case see Ryngaert, ‘Tort Litigation’ (n 47) 250–​251.

152 La Manna resorted to the parent-​subsidiary joinder of cases in order to assert the jurisdiction of the forum over the subsidiary. Namely, the claim regarded the same defendants as in the English Okpabi case, ie rds and spdc for oil spills in the Niger delta. Albeit incorporated in the UK, the parent company Shell had its headquarters, ie its central place of business, in the Netherlands, hence triggering the application of Article 63 Brussels I bis. As a consequence, being the actions connected, Dutch judges joined the claims vis à vis the parent company and the Nigerian subsidiary, with a view to promote expediency of proceedings.49 Importantly enough, though the District Court dismissed the claims against rds, on appeal all claims were reinstated.50 The claim against the subsidiary thus survived the dismissal of the claim against the parent company. This is not however going to be the last step for the rds feuilleton with reference to the overall situation in the Niger delta, at least not in Dutch jurisdictions. Very recently the wife of the late Ken Saro Wiwa successfully brought before the District Court of The Hague a civil complaint against Shell for the unlawful killing of her husband, a leader of the Ogoni protest against the extractive colossus.51 Another civil law jurisdiction having to deal with corporate conduct causing environmental damage and environment-​related human rights violations in Africa is Italy. The Ikebiri case was recently brought against eni before Italian merits jurisdictions.52 The outcome is much anticipated. The doctrine of anchor defendants is still in its early days, but it is in the process of spreading, which confirms both its legitimacy and its perceived

49

50 51

52

See art. 7(1) Dutch Code of Civil procedure, according to which if legal proceedings are to be initiated by a writ of summons and a Dutch court has jurisdiction with respect to one of the defendants, then it has jurisdiction as well with respect to the other defendants who are called to the same proceedings, provided that the rights of action against the different defendants are connected with each other in such a way that a joint consideration is justified for reasons of efficiency. See (last visited 31 December 2019). The Hague Court of Appeal, Milieudefensie v Royal Dutch Shell PLC and Shell Petroleum Development Company of Nigeria Ltd, 17 December 2015, ECLI:NL:GHDHA:2015:3587. See also Weller and Pato (n 35) 410. See; (both websites last accessed 31 December 2019). Tribunale di Milano, Comunità Ikebiri v Eni SpA, filed in May 2017. See B Hess, M Mantovani, ‘Current developments in forum access:  Comments on jurisdiction and forum non conveniens –​European perspectives on human rights litigation’ (2019) MPILux Research Paper Series, available at (last visited 31 December 2019).

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legality. It is not hard to figure out the rationale for this newborn trend: on the one hand, the protection of human rights is a fundamental value of the EU, as provided for under Article 6 of the Treaty on the European Union (teu); on the other, the protection of the environment, itself one of the main goals of the EU under Article 3 teu, has become a paramount factor in EU policies and secondary legislation.53 If, as recalled in Section 4, residual jurisdiction has to be exercised in conformity with primary EU law, since it concurs in the establishment of the overall EU jurisdictional system via Article 6 Brussels I bis Regulation, then it all makes perfect sense. Yet another symptom of the emergence of a different perception through Europe is the adoption of national legislations providing for due diligence obligations upon parent companies for the activities of their subsidiaries, thereby establishing a duty of care and calling for the adoption of monitoring procedures (eg plan de vigilance), both with reference to subsidiaries and the overall supply chain.54 More and more legal orders are pointing in that direction, either via statutory provisions or their domestic case-​law. Despite their differences, the UK, French, and Swiss model share the same concerns,55 and even the hybrid Italian model may be said to obey to them. Something is moving indeed.

53

54

55

This is further confirmed by the conflict of law provisions in Regulation (EC) 864/​2007 of the European Parliament and of the Council of 11 July 2007 on the Law Applicable to Non-​Contractual Obligations (Rome ii) [2007] OJ L 199/​40 which provides for a specific derogatory discipline with reference to environmental damage, ie Article 7: ‘The law applicable to a non-​contractual obligation arising out of environmental damage or damage sustained by persons or property as a result of such damage shall be the law determined pursuant to Article 4(1), unless the person seeking compensation for damage chooses to base his or her claim on the law of the country in which the event giving rise to the damage occurred’ (emphasis added). Besides, the Rome ii Regulation also establishes two provisions (Articles 16 and 26) postulating that the lex fori may be the applicable law, when the otherwise applicable foreign law appears to be contrary to public policy/​mandatory rules. The dual protection of the environment, both through conflict of laws provisions and jurisdictional rules, guarantees the systemic coherence of EU private international law. Weller and Pato (n 35) 412–​416; D Palombo, ‘The Duty of Care of the Parent Company: A Comparison between French Law, UK Precedents and the Swiss Proposals’ (2019) 4 Business Human Rights J 1, 11 ff. The archetipical example is the French Loi relative au devoir de vigilance des sociétés mères et des entreprises donneuses d’ordre, adopted on 27 March 2017; see also E Pataut, ‘Le devoir de vigilance  –​Aspects de droit international privé’ (2017) Droit social 833. Palombo (n 54)  19; see also T Beau de Loménie, S Cossart, P Morrow, ‘From Human Rights Due Diligence to Duty of Vigilance: Taking the French Example to the EU Level’, in Bonfanti (ed), Business and Human Rights (n 9) 133.

154 La Manna 6

Conclusion. the Spontaneous Pursuit of Common Values through Domestic Jurisdictional Grounds

The case-​law reviewed in Section 5 shows that instead of ‘minding their own business’ and only admitting claims genuinely linked to the forum, a couple of Member States (one of them being a former Member State, today) deliberately adopted domestic jurisdictional grounds or developed judicial techniques to encompass claims having no link to the forum. But why is that? Are those cases complying with obligations under primary EU law? It is of course true that both human rights and the environment are values cherished by the EU, but no express obligation to further their implementation via the establishment of exorbitant grounds may be figured out. One is rather under the opposite impression, if one considers the practice of the ECtHR, cross-​referenced under Article 6 teu, which has instead taken up a somewhat conservative turn with reference to exorbitant grounds, even admitting that a denial of justice does not infringe the right of access to a court enshrined under Article 6(1) echr, as the Naït Liman case shows.56 Thus, if there is no obligation to comply with, how could the attitude of the UK and the Netherlands be explained? The explanation must be related to the emergence of a different policy, whereby the goal of preventing a denial of justice in cases like the ones reviewed in Section 5, has become paramount, hence closing the gaps in the judicial protection system.57 Should the trend spread among Member States and should national judiciaries begin to spontaneously converge,58 which appears still premature an assessment to make, a top-​down normative approximation of residual grounds may not be as necessary or at least not as urgent as some suggest. One may thus wonder whether we are witnessing the very first stages of the formation of a new ‘constitutional tradition 56

57

58

Naït-​Liman v Switzerland App no 51357/​07 (ECtHR, GC, 15 March 2018). For a thorough review of the argument of the Grand Chamber, see A Saccucci, ‘The Case of Naït-​Liman Before the European Court of Human Rights. A Forum non Conveniens for Asserting the Right of Access to a Court in Relation to Civil Claims for Torture Committed Abroad?’ above in this volume. J Wouters and C Ryngaert, ‘Litigation for Overseas Corporate Human Rights Abuses in the European Union: the Challenge of Jurisdiction’ (2009) 40 The George Washington Intl L Rev 939, 956: ‘Home-​state regulation then becomes cooperative rather than antagonistic. Because home-​state regulation geared to transnationally protecting human rights does not serve the interests of the home state, but the interest of the international community in condemning human-​rights violations wherever they may have occurred, home-​state regulation, while having extraterritorial overtones, may, as De Schutter points out “benefit from a presumption of lawfulness under international law” ’. H Muir Watt, ‘Private International Law Beyond the Schism’ (2011) 2 Transnl L Theory 347.

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common to Member States’, envisaged under Article 6 teu as a source of human rights law for the purposes of the EU legal order. However scarcely relevant in purely quantitative terms, the case law reviewed in Section 5 is interesting in qualitative terms. The fact that those States do not lay down rules for the exclusive purpose of having jurisdiction over matters connected with the forum, but instead bother looking at the ‘bigger picture’ of international jurisdiction to make sure there are no gaps, is intriguing. This way, the attributive domestic provisions, rather than marking unilaterally the borders of national jurisdiction, end up being distributive in nature. If States aim at making sure that there are no gaps in the overall system and at preventing denials of justice, then they really are allocating international jurisdiction. For the purposes of closing a regulatory gap, private international law may thus be a very useful instrument of global governance, allocating jurisdiction among different States.59 If one looks more closely, the Regulation bothers performing said distribution, albeit indirectly, via domestic jurisdictional criteria, in accordance with Article 6. One wonders if this is the envisaged ‘third layer of private international law’ commentators invoke.60 This is coherent with recent scholarly work on the notion of jurisdiction, positing that the latter can no longer be interpreted as being merely power-​ based, as it also implies governance and accountability,61 precisely what is enshrined in the reviewed case law. It is still too soon to conclude that EU Member States are no longer willing to tolerate that victims of extraterritorial corporate abuses meet against a gap of judicial protection. However, bearing in mind that ‘No man is an island, entire of itself’, as the famous poem goes,62 one may even admit that the time has probably come to test the assumption that neither is a legal order.

Bibliography

Álvarez Rubio JJ and Yannibas K (eds), Human Rights in Business. Removal of Barriers to Access to Justice in the European Union (Routledge 2017). Amnesty International, ‘Injustice Incorporated. Corporate Abuses and the Human Right to Remedy’ (2009) available at . 59 60 61 62

H Muir Watt, ‘The Relevance of Private International Law to the Global Governance Debate’, in H Muir Watt, D Fernández Arroyo (eds), Private International Law and Global Governance (oup 2014) 1. Gillies (n 30) 496. See in this volume P Franzina, ‘The Changing Face of Adjudicatory Jurisdiction’. J Donne, The Complete English Poems (Penguin 2001).

156 La Manna Anderson M, ‘Transnational Corporations and Environmental Damage: Is Tort Law the Answer?’ (2001–​2002) 41 Washburn L J 399. Aristova E, ‘Tort Litigation against Transnational Corporations in the English Courts: The Challenge of Jurisdiction’ (2018) 14 Utrecht L Rev 6. Arnold DG, ‘Corporations and Human Rights Obligations’ (2016) 1 Business Human Rights J 255. Augenstein D and Jägers N, ‘Judicial Remedies: The Issue of Jurisdiction’, in JJ Álvarez Rubio and K Yannibas (eds), Human Rights in Business. Removal of Barriers to Access to Justice in the European Union (Routledge 2017) 7. Beau de Loménie T, Cossart S, Morrow P, ‘From Human Rights Due Diligence to Duty of Vigilance: Taking the French Example to the EU Level’, in A Bonfanti (ed), Business and Human Rights in Europe. International Law Challenges (Routledge 2019) 133. Bonfanti A (ed), Business and Human Rights in Europe. International Law Challenges (Routledge 2019). Bonfanti A, ‘Diritti umani e imprese multinazionali, dinanzi ai giudici europei: sulla revisione del Regolamento (CE) n. 44/​2001’ (2011) 47 RDIPP 697. Bright C, ‘The Civil Liability of the Parent Company for the Acts or Omissions of the Subsidiary. The Example of the Shell Cases in the UK and the Netherlands’, in A Bonfanti (ed), Business and Human Rights in Europe. International Law Challenges (Routledge 2019) 212. Carbone SM, Tuo C, ‘Non-​EU States and Brussels I: New Rules and Some Solutions for Old Problems’ (2015) 51 RDIPP 5. Cassese A (ed by M Frulli), Diritto internazionale (3rd edn, Il Mulino 2017). De Brabandere E, ‘Non-​State Actors and Human Rights. Corporate Responsibility and the Attempts to Formalize the Role of Corporations as Participants in the International Legal System’, in J D’Aspremont (ed), Participants in the International Legal System. Multiple Perspectives on Non-​State Actors in International Law (Routledge 2011) 268. De Schutter O, ‘Towards a New Treaty on Business and Human Rights’ (2016) 1 Business Human Rights J 41. Donne J, The Complete English Poems (Penguin 2001). Drimmer J and Laplante LJ, ‘The Third Pillar. Remedies, Reparations, and the Ruggie Principles’, in J Martin and KE Bravo, The Business and Human Rights Landscape. Moving Forward, Looking Back (cup 2015) 316. Espinosa González A and Sosa Navarro M, ‘Corporate Liability and Human Rights. Access to Criminal Judicial Remedies in Europe’, in A Bonfanti (ed), Business and Human Rights in Europe. International Law Challenges (Routledge 2019) 223. Franzina P, ‘Le condizioni di applicabilità del regolamento (CE) n. 44/​2001 alla luce del parere 1/​03 della Corte di Giustizia’ (2006) 89 RDI 948. Gillies L, ‘Creation of Subsidiary Jurisdiction Rules in the Recast of Brussels I: Back to the Drawing Board?’ (2012) 8 J Private Intl L 489.

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Grimheden J, ‘Civil Litigation in Response to Corporate Human Rights Abuse: The European Union and Its Member States’ (2018) 50 Case Western Reserve J Intl L 235. Häusler K et al, ‘Non-​judicial Remedies: Company-​based Grievance Mechanisms and International Arbitration’, in JJ Álvarez Rubio and K Yannibas (eds), Human Rights in Business. Removal of Barriers to Access to Justice in the European Union (Routledge 2017) 78. Herzberg A, ‘Kiobel and Corporate Complicity  –​Running with The Pack’ (2014) 107 AJIL Unbound 41. Hess B, Mantovani M, ‘Current developments in forum access: Comments on jurisdiction and forum non conveniens –​European perspectives on human rights litigation’ (2019) MPILux Research Paper Series, available at . Holly G, ‘Transnational Tort and Access to Remedy under the UN Guiding Principles on Business and Human Rights: Kamasaee v Commonwealth’ (2018) 19 Melbourne J Intl L 52. ictur, ‘Removing Barriers to Justice. How a treaty on business and human rights could improve access to remedy for victims’, Report by D Blackburn (2017) available at . Koebele M, Corporate Responsibility Under the Alien Tort Statute. Enforcement of International Law through US Torts Law (Nijhoff 2009). Lowe V, ‘Corporations as International Actors and International Law Makers’ (2004) 14 Italian Ybk Intl L 23. Mares R, ‘Limits of Supply Chain Responsibility: A Critical Analysis of Corporate Responsibility Instruments’ (2010) 79 Nordic J Intl L 193. Martin J and Bravo KE, The Business and Human Rights Landscape. Moving Forward, Looking Back (CUP 2015). McCorquodale R, ‘Waving not Drowning: Kiobel Outside the United States’ (2013) 107 AJIL 846. Muchlinski P, ‘Corporations in International Litigation: Problems of Jurisdiction and the United Kingdom Asbestos cases’ (2001) 50 ICLQ 1. Muir Watt H, ‘Private International Law Beyond the Schism’ (2011) 2 Transnl L Theory 347. Muir Watt H, ‘The Relevance of Private International Law to the Global Governance Debate’, in H Muir Watt, DP Fernández Arroyo (eds), Private International Law and Global Governance (oup 2014) 1. Nuyts A, ‘General Report on Study on Residual Jurisdiction (Review of the Member States’ Rules concerning the “Residual Jurisdiction” of their courts in Civil and Commercial Matters pursuant to the Brussels I and II Regulations)’, 3 September 2007, available at (last visited 26 May 2020). Palombo D, ‘The Duty of Care of the Parent Company: A Comparison between French Law, UK Precedents and the Swiss Proposals’ (2019) 4 Business Human Rights J 1.

158 La Manna Pataut E, ‘Le devoir de vigilance –​Aspects de droit international privé’ (2017) Droit social 833. Ratner SR, ‘Corporations and Human Rights: A Theory of Legal Responsibility’ (2001) 111 Yale L J 443. Roorda L, ‘Adjudicate This! Foreign Direct Liability and Civil Jurisdiction in Europe’, in A Bonfanti (ed), Business and Human Rights in Europe. International Law Challenges (Routledge 2019) 195. Ruggie JG, Just Business. Multinational Corporations and Human Rights (Norton & Company 2013). Ryngaert C, Jurisdiction in International Law (2nd edn OUP 2015). Ryngaert C, ‘Tort Litigation in Respect of Overseas Violations of Environmental Law Committed by Corporations: Lessons from the Akpan v Shell Litigation in the Netherlands’ (2013) 8 McGill Intl Sust Dev L Policy J 245. Sanger A, ‘Transnational Corporate Responsibility in Domestic Courts:  Still out of Reach’ (2018) 113 AJIL Unbound 4. Vlas P, ‘Article 63’, in U Magnus, P Mankowski, (eds), Brussels I bis Regulation. Commentary (Otto Schmidt 2016) 993. Weber J, ‘Universal Jurisdiction and Third States in the Reform of the Brussels I Regulation’ (2011) 75 RabelsZ 619. Weller M and Pato A, ‘Local Parents as ‘Anchor Defendants’ in European Courts for Claims against Their Foreign Subsidiaries in Human Rights and Environmental Damages Litigation: Recent Case Law and Legislative Trends’ (2018) 23 Unif L Rev 397. Wouters J and Ryngaert C, ‘Litigation for Overseas Corporate Human Rights Abuses in the European Union: the Challenge of Jurisdiction’ (2009) 40 The George Washington Intl L Rev 939.

chapter 8

The Law Applicable to the Civil Consequences of Human Rights Violations Committed Abroad Patrick Kinsch 1

Introduction

This contribution treats an aspect of the right to access to justice in a world where inhuman acts are committed, but there is no reasonable possibility for their victim to obtain redress in the courts of the country where they have been committed. The paradigm case is the case of official torture, of the kind that was alleged by Abdennacer Naït-​Liman in his –​ultimately unsuccessful –​ claim against the Republic of Tunisia and against the former Tunisian Minister of the Interior.1 2

Adjudicatory Jurisdiction and Applicable Law

The quest for justice by the victims of such acts has important procedural aspects. Procedure comes first. If it is impossible to obtain jurisdiction in a forum other than the country where the acts were committed, the quest ends there. That has been the (unfortunate) result of the Naït-​Liman case. Yet a discussion of the next step in civil proceedings –​the determination of the applicable law –​in a hypothetical case where the jurisdictional obstacle could be overcome is worth conducting. Even now there are situations where jurisdiction can be founded in a neutral forum; American case law under the, now almost defunct, Alien Tort Statute (ats)2 can be used to illustrate some of these situations. Contrary to the impression of a number of scholars outside the United States, the ats has never been a statute providing for universal adjudicatory jurisdiction; there has always been a need, in ats cases, to rely 1 See the judgment of the Tribunal Fédéral Suisse of 22 May 2007, 4C.379/​2006 as well as Naït-​ Liman v Switzerland App no 51357/​07 (ECtHR, GC, 15 March 2018). 2 28 USC § 1350: ‘The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States’.

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004408579_010

160 Kinsch on the ordinary rules of judicial jurisdiction –​after which the federal courts had subject matter jurisdiction and would attempt to apply, to some extent, international law to the civil consequences of ‘torts in violation of the law of nations’3. The simplest case is where the defendant has changed residence after the facts and has come to reside in the forum. This situation is illustrated by the very first of the modern ats cases, Filártiga v Peña-​Irala, which involved claims for torture and murder against a former Inspector General of Police in Paraguay:  jurisdiction was easily obtained against the defendant who, after the end of his career in Paraguay, had come to reside (illegally, as an overstayer on a visitor’s visa) in Brooklyn, New York and even to start working in New York, where he could be served with process.4 Or the following method, used in a case against Radovan Karadžić (at a time, in 1993, where he still was the ‘President of Republika Srpska’, only much later to be convicted in The Hague for his war crimes): under American law, ‘tag jurisdiction,’ deriving from actual physical service of the claim on the person of the defendant staying temporarily –​ however fleetingly –​in the United States still is a recognized form of acquiring jurisdiction over a defendant resident abroad; therefore, the jurisdiction of the United States District Court for the Southern District of New York could be obtained against Karadžić by personally serving him with process while in Manhattan as an invitee of the United Nations.5 Some of these possibilities may not exist in a European forum –​although residence in Europe can be a criterion for jurisdiction, applicable either because the defendant has become domiciled in Europe, or, in the case of temporary residence, because that fact might have the effect of tilting the balance of judicial assessment in favour of the plaintiff under a forum necessitatis statute. And after all, there is still the possibility of the recognition, in the future, of universal civil jurisdiction in appropriate cases; as the European Court of Human Rights said in the Naït-​Liman case: 3 See P Kinsch, ‘The Demise of International Human Rights Litigation in the US Courts? (note to Kiobel v. Royal Dutch Petroleum Co)’ in H Muir Watt, L Bíziková, A Brandão de Oliveira, DP Fernández Arroyo (eds), Global Private International Law. Adjudication without Frontiers (Edward Elgar 2019) 303. 4 Filártiga v Peña-​Irala, 630 F2d 876 (2d Cir 1980). 5 Kadic v Karadžić, 70 F3d 232 (2d Cir 1995). The judgment also rejects the plea of immunity based on the United Nations invitation extended to Karadžić, as well as the idea of forum non conveniens, noting that ‘it seems evident that the courts of the former Yugoslavia, either in Serbia or war-​torn Bosnia, are not now available to entertain plaintiffs’ claims, even if circumstances concerning the location of witnesses and documents were presented that were sufficient to overcome the plaintiffs’ preference for a United States forum’.

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Given the dynamic nature of this area, the Court does not rule out the possibility of developments in the future. Accordingly, and although it concludes that there has been no violation of Article 6 § 1 in the present case, the Court invites the States Parties to the Convention to take account in their legal orders of any developments facilitating effective implementation of the right to compensation for acts of torture, while assessing carefully any claim of this nature so as to identify, where appropriate, the elements which would oblige their courts to assume jurisdiction to examine it.6 This essay is prospective in nature, like the book in which it appears: we will therefore assume that the jurisdictional obstacle can (in the future) be overcome. The victim obtains access to a court in a neutral forum. Then, a second question arises: what law applies? 3

Application of a National Law or of ‘Global Law’?

At first sight, the ‘global law’ option can seem intuitively attractive. After all, ex hypothesi the jurisdiction of the court seised is based on universal jurisdiction, a concept that cannot be said to derive from national law but whose base is in (future developments of) public international law. Does it not follow that the applicable law, too, must be ‘global law’ –​or more specifically, public international law?7 This solution does have its advocates.8 They are especially critical of recourse to traditional rules on lex loci delicti: this is considered to be inappropriate at least for finding the applicable rules relating to liability (otherwise, it is said, the very governments responsible for human rights violations could see 6 Naït-​Liman v Switzerland (GC) (n 1) para 220. 7 ‘Global law’ is an ambiguous (if academically popular) concept. It can refer to transnational private norm-​creating activities, which are considered as legally relevant under one of the (plural) theories of legal pluralism. In other words, it can refer, as G Teubner, ‘Global Bukowina’: Legal Pluralism in the World-​Society’, in G Teubner (ed), Global Law Without A State (Aldershot 1996)  3 has termed it, to the ‘multiplicity of diverse communicative processes in a given social field that observe social action under the binary code of legal/​illegal’. This meaning of the term is clearly inappropriate in the present context. ‘Global law’ is, in the context of criminal or civil liability for human rights violations, simply a synonym for ‘public international law’. 8 See eg C Kessedjian, ‘Les actions civiles pour violation des droits de l’homme. Aspects de droit international privé’ (2005) 16 Travaux du Comité français de droit international privé 151.

162 Kinsch to their own non-​liability). International law should therefore apply, at least to the issue of the existence of the defendants’ liability.9 But a reference to international law is not the only possibility. In the Naït-​ Liman case itself, the plaintiff had chosen to base his claim for damages in the Geneva civil court on a national law, determined in accordance with the ordinary choice of law rules of Switzerland: the applicable law was, according to the plaintiff himself, the law of Tunisia as the law of the State in which the wrongful act was committed.10 A third and last possibility would be application of the lex fori. If, for instance, a Swiss court were (counterfactually) to acquire jurisdiction over those responsible for torture in Tunisia, it could also apply Swiss law to the civil consequences of that conduct: a new form of application of the maxim lex fori in foro proprio. Application of that maxim is not absurd –​after all it is, or was, the principle applied to the merits of ats lawsuits in the United States of America. The United States Supreme Court cases are based on the consideration that the ats does not directly regulate conduct or afford relief; it instead allows federal courts to recognize certain causes of action under United States federal law, based on sufficiently definite norms of international law.11 The cases are based on the assumption that in substance, the lex fori applies to ats proceedings: federal common law applies to enforce international legal norms.12 9

10

11 12

On the other hand, the rules relating to the effects of that liability in terms of damages will, according to Kessedjian (n 8) 171, have to be found in national law, for there are, in her opinion, no pertinent international law rules. According to her, the best choice of law rule is to apply to these issues the law of the victim’s residence at the moment of starting the proceedings (ibid): ‘c’est au lieu de sa résidence habituelle que la victime participe à l’organisation socio-​économique de la communauté humaine dans laquelle elle vit (…) quelle loi mieux que celle de la résidence de la victime peut donner au juge les indications nécessaires pour évaluer son préjudice?’. Naït-​Liman v Switzerland (GC) (n 1) para 23: ‘The applicant submitted that the conditions for reparation of non-​pecuniary damage provided for by Articles 82 et seq. of the Tunisian Code of Obligations and Contracts, applicable under section 133(2) of the Federal Law on Private International Law (Loi fédérale sur le droit international privé, the LDIP […]), had been met’. Art. 133(2) of the ldip is an unsurprising rule of private international law, stating that ‘Where the perpetrator and the injured party do not have their habitual residence in the same State, those claims shall be governed by the law of the State in which the wrongful act was committed. However, if the result was produced in another State, the law of that State shall be applicable if the perpetrator ought to have foreseen that the result would be produced there’. Kiobel v Royal Dutch Petroleum Co, 569 US 108, 115 (2013). Sosa v Alvarez-​Machain, 542 US 692 (2004). In contrast, Filártiga v Peña-​Irala (n 4) had tried to distinguish the international law aspect which only arises at the level of federal jurisdiction, and the choice of the applicable law, which might be the law of the foreign country where the conduct took place.

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However, wholesale application of the lex fori is generally considered bad form in Europe.13 It is realistic therefore to say that the question of determining the law applicable to the merits of terms of a claim based on the violation of human rights norms abroad boils down, at least in a European forum, to essentially two possibilities: either applying the public international law concepts of civil liability (to the extent that these can be found), or applying the choice of law rule declaring applicable the law of the place where the human rights violations took place. The latter option, if it is to be chosen, is not necessarily as nightmarish as it might appear, for − as will be seen − there are mechanisms in private international law that can be applied if necessary and that allow justice to prevail . To sum up, there are two solutions of principle to the question of the applicable law: the universalist solution and the national law solution. We first turn to the universalist solution. 4

The Universalist Solution: Application of Public International Law to (All or Some of the) Civil Consequences of the Violation of International Law Norms

As we have seen, opting for the application of public international law norms in national courts has been suggested in academic writings14 as a solution to the problems inherent in determining the law applicable to the civil consequences of a human rights violation abroad. It cannot be dismissed out of hand. It is a feasible solution (which does not necessarily mean the only solution)15 to the determination of the law applicable to liability stricto sensu. In an issue by issue approach to liability in private international law –​which corresponds, it is true, to American16 rather than to European conflicts approaches –​this kind of dépeçage is conceivable: it means that the application of public international law will be limited to issues of liability, and that the determination of 13

14 15 16

It is only at one’s peril that one forgets, in Europe, the admonition of Accursius at the dawn of private international law in his Glossa Ad Legem Cunctos Populos: ‘Argumentum quod si Bononiensis conveniatur Mutinae, non debet iudicari secundum statuta Mutinae, quibus non subest’ (the argument that if a man from Bologna appears before a judge in Modena, he is not to be judged according the laws of Modena, which he is not under the obligation to comply with … ). cf in particular Kessedjian (n 8). As will appear hereafterSection 5. See S Symeonides, The American Choice-​of-​Law Revolution:  Past, Present and Future (Martinus Nijhoff 2006) 33.

164 Kinsch the modes of reparation or the assessment of damages will be dealt with under a national law. Is it possible to go beyond that partial application of international law to the issue of liability and to submit all the consequences of a human rights violation in terms of civil liability –​from issues of causation to the determination of damages –​to public international law as well? There are indeed, in the field of civil reparations for international crimes, some kinds of international rules that can be applied by international courts –​the question that remains is whether applying those same rules is a viable option for a national civil court. Where criminal proceedings are brought in the International Criminal Court (icc), there can be an order by that international court, assuming that it convicts the accused, ‘directly against the convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation’,17 and there is jurisprudence of the icc on the rules pertaining to such measures of reparation. Whether using (or attempting to use) that jurisprudence is adequate in proceedings in national courts is a different matter. The icc is supposed to apply, in the absence of pertinent provisions of the Rome Statute or of other applicable treaties or established rules of international law, ‘general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime’18 not the national law of the State where the crime has been committed as such. The practice of the icc in reparation cases is characterized by a high degree of flexibility in the determination of the adequate measures of reparation, with an emphasis on collective reparation measures rather than on individual assessment of damages.19 It also shows a clear, indeed a disturbing, tendency to apply what amounts in fact to an Americanized version of ‘global law’ (including in cases from the francophone States of Africa, whose law has little in common with concepts such as proof on a balance of probabilities or the ‘proximate cause’ standard for causation, which are nonetheless used in those cases by the icc)20. 17

Rome Statute of the International Criminal Court (adopted on 17 July 1998, entered into force 1 July 2002) 2187 untc 90, Article 75(2). 18 ibid Article 21(1)(c). Subparagraph (c) continues: ‘… provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards’. 19 On the jurisprudence of the icc in reparation matters, see E David, Éléments de droit pénal international et européen (vol 2, 2d edn, Bruylant 2018) 1163 ff. 20 See Prosecutor v Lubanga (Judgment on the appeals against the Decision establishing the principles and procedures to be applied to reparations of 7 August 2012) ICC-​01/​04-​01/​ 06-​3129-​AnxA 03-​03-​2015 1/​20 NM A A2 A3 (3 March 2015); Prosecutor v Katanga (Order

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While the icc is constrained by its Statute to apply (or to develop) public international law principles to the civil consequences of the crimes that fall under its jurisdiction, national civil courts have more options at their disposal. They can apply pre-​existing national law instead of adopting the icc approach. This holds true even where the civil action, brought in a national court, is an action for a human rights violation that also constitutes a crime under the icc’s jurisdiction,21 and a fortiori if the icc has no jurisdiction to intervene. In the present author’s opinion, the universalist solution –​at least the radical, ‘global law’ solution, under which a national court would be supposed to apply ‘general principles of law derived from national laws of legal systems of the world’ to all of the consequences of an international crime or human rights violation –​is suboptimal. To imitate the icc’s practice and to attempt to develop a law applicable to the civil consequences of human rights violations is something that national civil courts are not equipped to do. The ad hoc development of legal rules that would be adequate to international legal situations is a responsibility that these courts have been exempted from ever since there have been choice of law rules. 5

The National Law Option

Applying a national law is safer and intellectually more conservative, but not necessarily inferior in practical terms. For reasons already given,22 simply

21

22

for Reparations pursuant to Article 75 of the Statute) ICC-​01/​04-​01/​07 (24 March 2017); Prosecutor v Katanga (Judgment on the appeals against the order of Trial Chamber ii of 24 March 2017 entitled ‘Order for Reparations pursuant to Article 75 of the Statute’) ICC-​ 01/​04-​01/​07 (8 March 2018); see also Prosecutor v Al Mahdi (Judgment on the appeal of the victims against the ‘Reparations Order’) ICC-​01/​12-​01/​15A (8 March 2018). It is true, however, that the order of 24 March 2017 of Trial Chamber ii in Prosecutor v Katanga (above) para 230 indicates that the Chamber has taken into consideration, for the purpose of assessing the amount of damages for the loss of members of the family, the practice of the French and Belgian courts, together with that of the military courts of the Republic of Congo, the United Nations Compensation Commission and the Inter-​American Court of Human Rights. An analogy with civil actions for ordinary crimes may be helpful in this context. Under French law (to choose this example) it has been held that where a civil claim based upon a tort that also constitutes a crime is brought before a civil court, it is governed by the choice of law rules relating to torts, under which the lex loci delicti will be applied, see A Huet and R Koering-​Joulin, Droit pénal international (3rd edn, puf 2005) para 127; see also C Lombois, Droit pénal international (2nd edn, Dalloz 1979) paras 363–​365. See text to n 13.

166 Kinsch applying the lex fori is not a true option in private international law, at least not in European private international law. If the national law option is taken in a European forum, then the applicable law will need to be determined in accordance with the ordinary choice of law rules in tort matters. These rules can be those of the Rome ii Regulation,23 either considered to be applicable as such, including to cases of official torture,24 or at least as ratio scripta in the absence of written national choice of law rules. Under the 23 24

Regulation (EC) 864/​2007 of 11 July 2007 on the Law Applicable to Non-​contractual Obligations (Rome ii) [2007] OJ L199/​40. It is true that the scope of the Regulation is not unlimited, and that under Article1(1), the Regulation applies ‘to non-​contractual obligations in civil and commercial matters. It shall not apply, in particular, to revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii)’ (emphasis added). The sixth recital to the Regulation adds that claims arising out of acta iure imperii should include claims against officials who act on behalf of the State and liability for acts of public authorities. It is also true that at present acta iure imperii are understood as including, among others, the very type of unlawful conduct in violation of international law that we are concerned with here: this is clearly shown by the ecj in the Lechouritou case. See Case C-​292/​05 Lechouritou and others v Dimosio tis Omospondiakis Dimokratias tis Germanias [2007] ECLI:EU:C:2007:102, where the  –​similar  –​provision on the scope of the Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters was construed as excluding an ‘action for compensation brought in a Contracting State [Greece], by the successors of the victims of war massacres, against another Contracting State [Germany] on account of acts perpetrated by its armed forces’. However, these are solutions which are quite likely to change concomitantly with the present state of the law that denies the existence of universal civil jurisdiction –​if and when that state of the law changes –​and for the same reasons. In the Lechouritou case, it had been held that ‘there is no doubt that operations conducted by armed forces are one of the characteristic emanations of State sovereignty’ (para 37), regardless of the fact that they amounted to war crimes (para 43). As long as that value judgment holds, there is probably no chance of the law on the (in-​) existence of universal civil jurisdiction changing. But value judgments change in time; see, potentially as a harbinger of future changes, Corte di cassazione, judgment 762, 13 January 2017 (2018) rdipp 739, 741 describing war crimes as delicta imperii rather than as normal acta iure imperii and denying (following earlier Italian case law) the sovereign immunity of the German State for these acts of international wrongdoing; see also the reference to ‘an abuse of sovereign power’ in the judgment of the Greek Areios Pagos of 4 May 2000, Prefecture of Voiotia v Germany, 129 ilr 513, 519, as well as the obiter dictum, in Jones and others v The United Kingdom App no 34356/​06 and 40528/​06 (ECtHR, 14 January 2014) para 212, to the fact that (provisionally?) ‘outside the civil context’ –​in specie, in criminal cases  –​‘some support can be found for the argument that torture cannot be committed in an ‘official capacity’. It is submitted that there is no inevitable reason of policy to extend a special regime of exemption, ultimately based on state sovereignty, to delicta imperii which can be treated as ordinary torts for the purpose of determining the applicable law.

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Regulation (or under similar, national, choice of law rules) liability for the wrongful conduct abroad, having caused loss at the place of the wrongful conduct, will normally be governed by local law. True, application of the law of the place where the wrongful conduct occurred has a number of potential disadvantages –​conversely to the attractions of the ‘global law’ model. It may appear symbolically preferable directly to apply public international law to a tort considered as a tort jure gentium. And there are the practical risks in terms of the content of the applicable law, which could contain rules that negate the effectiveness of the civil remedy sought, such as (1) a rule declaring the conduct justified; (2) a civil amnesty provision; (3) short limitation period (either as a general provision of the law of the place of the wrongful conduct, or as a hidden amnesty law); (4) requirements in terms of proof eg of causality that are difficult to meet; (5) limits on the damages that can be awarded. That those risks exist is indisputable. And nonetheless, application of the local law is not necessarily a bad option. First, crimes will often be crimes under local law and will not be legally justified or amnestied under that law, regardless of the fact that they were committed at the instigation of the State. If the courts of the forum choose to take the foreign State’s legal order at face value,25 they can very well come to the conclusion that the conduct of the defendant was tortious under local law. It is instructive to consider how, back in 1984, the United States District Court resolved the question of the applicable law in Filártiga v Peña-​Irala26 –​not because it would have profoundly influenced the later jurisprudence of the courts in ats cases (it did not; as we have seen,27 the later jurisprudence decided to consider the issue of liablity as governed by American federal law, incorporating international law norms), but because it shows how an approach firmly based on application of the local law may work. The District Court thought it appropriate ‘to look first to Paraguayan law’ in determining the remedy for the violation of international law. ‘It might be objected,’ said the Court, ‘that, despite Paraguay’s official ban on torture, the ‘law’ of that country is what it does

25

26 27

See the classical study of the dual nature of the Nazi State by E Fraenkel, The Dual State. A Contribution to the Theory of Dictatorship (oup 1941) illustrating the coexistence of a ‘Normative State’ containing elaborate safeguards, and of a Gestapo-​led ‘Prerogative State’ which contained none of them and was highly effective, but not formally recognized under German law. For an overview of the case, see text to n 4. See text to n 12.

168 Kinsch in fact, Holmes, The Path of the Law, 10 Harv L Rev 457, 461 (1897), and torture persists throughout the country’. And yet: Where a nation’s pronouncements form part of the consensus establishing an international law, however, it does not lie in the mouth of a citizen of that nation, though it professes one thing and does another, to claim that his country did not mean what it said. In concert with the other nations of the world Paraguay prohibited torture and thereby reaped the benefits the condemnation brought with it. Paraguayan citizens may not pretend that no such condemnation exists. If there be hypocrisy, we can only say with La Rochefoucauld that ‘hypocrisy is the homage which vice pays to virtue’. […] To the extent that Peña might have expected that Paraguay would not hold him responsible for his official acts, that was not a ‘justified’ expectation, Restatement (Second) of Conflict of Laws (1971) § 6(2) (d) and comment g, so as to make unfair the application to him of the written law of Paraguay.28 Second hypothesis: let us assume that the crimes of the defendant are indeed declared justified under the local law or are amnestied in the foreign country where they were committed, or are subject to requirements designed to make the effective civil sanction of the violation impossible. In that case the public policy clause, inherent in the private international law of the forum, can cause these rules to be disregarded. In litigation in human rights cases, public policy must be seen as incorporating such norms of international law as the forum State considers as binding on its courts; if that statement is accepted (and not diluted through requirements of proximity to the forum, of Inlandsbeziehung,29 which are inappropriate to violations of international law30), then the public policy exception will be an effective tool for the assessment of the civil consequences of a human rights violation in a country whose law 28 29

30

Filártiga v Peña-​Irala, 577 F Supp 860, 864 (edny 1984). Such as the Inlandsbeziehung requirement that is thought by some to be apposite to the judgment of claims based on human rights violations by multinational corporations, brought in the corporations’ home courts by foreigners residing abroad. If that requirement applies, those claims will be dismissed. See in particular G Wagner, ‘Haftung für Menschenrechtsverletzungen’ (2016) 80 RabelsZ 717, 744–​749. FA Mann, ‘The Consequences of an International Wrong in International and National Law’ (1976) 48 British Ybk Intl L 1 reprinted in id, Further Studies in International Law (Clarendon Press 1990) 124 ff proves this point convincingly and then comes to the (perhaps overly pessimistic) conclusion that the direct application of public international law is preferable to the application of the public policy exception, which, in his view, runs the constant risk of being ‘an unsafe rule of decision in that it may enable the national court

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considers that violation as ‘lawful’. Thus understood, public policy operates as a sword, not only as a shield.31 Its effect is to give extraterritorial force to the requirements of the fundamental principles of the forum, by sanctioning their violation abroad. This kind of extraterritoriality of the forum’s public policy principles is not objectionable, since it merely reflects universally binding human rights norms. Under those conditions –​but only under those conditions –​there is in substance, and in practice, no difference between a system of private international law that proceeds on an issue-​by-​issue basis and applies international law directly to the wrongfulness of a defendant’s conduct, and a system of conflicts law that prefers to apply the national law of the place of the wrong, corrected through the forum’s public policy.

Bibliography

David E, Éléments de droit pénal international et européen (2nd edn, Bruylant 2018). Fraenkel E, The Dual State. A Contribution to the Theory of Dictatorship (oup 1941). Huet A and Koering-​Joulin R, Droit pénal international (3rd edn, puf 2005). Kessedjian C, ‘Les actions civiles pour violation des droits de l’homme. Aspects de droit international privé’ (2005) 16 Travaux du Comité français de droit international privé 151. Kinsch P, ‘The Demise of International Human Rights Litigation in the US Courts? (note to Kiobel v. Royal Dutch Petroleum Co.)’ in H Muir Watt, L Bíziková, A Brandão de Oliveira and DP Fernández Arroyo (eds), Global Private International Law. Adjudication without Frontiers (Edward Elgar 2019) 303. Lombois C, Droit pénal international (2nd edn, Dalloz 1979). Mann FA, ‘The Consequences of an International Wrong in International and National Law’ (1976) 48 British Ybk Intl L 1 reprinted in id, Further Studies in International Law (Clarendon Press 1990) 124. Symeonides S, The American Choice-​of-​Law Revolution: Past, Present and Future (Martinus Nijhoff 2006). Teubner G, ‘Global Bukowina’: Legal Pluralism in the World-​Society’ in G Teubner (ed), Global Law Without A State (Aldershot 1996) 3. Wagner G, ‘Haftung für Menschenrechtsverletzungen’ (2016) 80 RabelsZ 717.

31

to reach and justify decisions which are alien to an enlightened system of law and the demands of justice’, ibid 157. A real world example for this is the jurisprudence of the (post-​reunification) German courts on the civil liability of former Stasi informants: see bgh 11 October 1994, VI ZR 234/​ 93, BGHZ 127, 195, in particular paras 28 and 34.

chapter 9

The Changing Face of Adjudicatory Jurisdiction Pietro Franzina 1

Introduction

Adjudicatory jurisdiction is traditionally presented as a synonym of power and an aspect of sovereignty.1 To say that the courts of a State have jurisdiction over a dispute is to say that the adjudication of that dispute comes within the powers of those courts and may accordingly be decided by the latter as to its substance. Jurisdiction, seen from this angle, defines the ability of a State to perform, in cross-​border cases, one of its most characteristic prerogatives: that of determining the law by means of binding decisions, the observance of which is secured in principle by the State itself, including, where necessary, through coercive measures. The tensions surrounding the regulation of adjudicatory jurisdiction, including as regards the admissibility of, and the conditions for, the exercise of universal civil jurisdiction, are premised precisely on the understanding that jurisdiction, as a legal notion, is concerned essentially with power. The practice of States, however, is evolving, and so are the views of scholars. Jurisdiction can no longer be described as being solely about power, nor chiefly about States. A different conception of jurisdiction is emerging which involves responsibility alongside power, and is concerned with the efficiency, not just the legitimacy, of States’ action. A renewed understanding of jurisdiction, one acknowledging the role that international cooperation and dialogue between courts play in the management of cross-​border disputes, would help shape workable responses to the challenges posed by the increasing recourse to civil litigation in connection with international wrongs.

1 DW Bowett, ‘Jurisdiction:  Changing Patterns of Authority over Activities and Resources’ (1982) 53 British Ybk Intl L 1.

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004408579_011

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The Power Paradigm and Its Corollaries

Thinking of jurisdiction as raising in essence a question of power implies looking at jurisdiction as a State problem, ie one relating fundamentally to the sovereignty of the States concerned and their mutual relations.2 The scope of a State’s jurisdiction appears to measure the intended territorial reach of the policies of that State.3 Where a State instructs its courts to entertain a given dispute, that State is in fact expressing an interest in regulating, under its own policies (albeit not necessarily under its own substantive rules), the legal relationship in question, regardless of the ties of that relationship with other countries. By affirming its jurisdiction, a State claims control over a portion of social reality. Entertaining a civil case is a meaningful act, both politically and socially.4 The assertion of jurisdiction signifies the willingness of the forum State to engage in the administration of the relationship at issue. The exercise of jurisdiction, regardless of whether the dispute is to be settled in accordance with the law of the forum or that of a foreign country, ranks among the most tangible expressions of a State’s functions. The State’s engagement in the administration of private relationships reinforces in fact the ties between the State itself and the individuals concerned. By gaining access to justice, those invoking a substantive right come to benefit from the forum State’s force. The effective realisation of the right in question may depend on that. One corollary of the described understanding is that, in cases with a foreign element, the regulation of jurisdiction presents itself as involving the resolution of a conflict. Insofar as States are free to shape their policies, including the geographical reach thereof, the possibility arises that two or more States may concurrently claim authority over the same dispute. If power is all that matters, such a concurrence entails an element of confrontation. In the absence of international rules allocating jurisdiction among States, or restricting the exercise of jurisdiction in particular circumstances, each State will assess on 2 F Mailhé, L’organisation de la concurrence internationale des juridictions (Economica 2016) 21 ff. 3 The view has long been put forward that jurisdiction is inherently tied to territory, and that the legitimacy of a State’s claim to jurisdiction must be assessed, in principle, in view of the connections of the dispute (ie the parties and/​or the disputed legal relationship) with the territory of that State. For a critical analysis of this approach, see R Michaels, ‘Territorial Jurisdiction after Territoriality’, in PJ Slot, M Bulterman (eds), Globalisation and Jurisdiction (Kluwer Law International 2004) 105. 4 F Ost, Dire le droit, faire justice (Bruylant 2007).

172 Franzina its own how the conflict ought to be decided, ie whether local courts should make themselves available to hear the plaintiff’s claim or rather dismiss the case without any consideration of the merits. This approach closely mirrors the tenets of legal positivism. The primacy, if not indeed the exclusive relevance, of the forum State’s own views as to the extent of its powers accords with the idea that a State’s legal order is ‘unique’ and exclusive, meaning that, in that State’s view, its legal order is comprehensive (for it claims authority to regulate any type of behaviour) and supreme (in the sense that it controls the setting up and application of other systems within its boundaries).5 The settlement of jurisdictional conflicts may come in different forms and shapes, but the picture remains that of a decentralised system where the outreach of the concerned States’ jurisdiction is assessed by those States individually, having little or no regard for the interests or the views of other States, let alone those of the international community.6 A State may express an interest in the administration of social relations either by providing that its own courts have the power to deal with those relations, or by determining that no effect be given to foreign decisions concerning the relations in question. Both approaches build on the assumption that jurisdiction is concerned with the States’ respective ‘competence’, ie the range of situations in which a State’s powers may be validly exercised –​something that, absent an international norm, the States concerned are permitted to decide by themselves. The problem, thus framed, is one of legitimacy and line-​drawing. The key issue with adjudicatory jurisdiction, viewed from this perspective, consists in determining in which situations a State is permitted, prohibited or required to involve itself in the settlement of a dispute. It is against this backdrop that the question generally arises of the limits imposed by general international law upon the States’ jurisdictional rules, that is, whether, and to what extent, the jurisdiction of States to adjudicate civil and commercial disputes is governed by international law standards, in addition to domestic rules. As discussed in other chapters of this volume, the opinions diverge as to the very existence of such international standards, let alone their scope. According 5 J Raz, The Authority of Law (2nd edn, oup 2009) 115 ff. 6 See, in this vein, among others, P Mayer, ‘La notion de coordination et le conflit de juridictions’, in E Pataut, S Bollée, L Cadiet and E Jeuland (eds), Les nouvelles formes de coordination des justices étatiques (irjs 2013) 3, 7; the author notes, in particular, that where the jurisdiction of local courts is based on the nationality of the claimant, the conferral of power ‘tourne le dos à toute préoccupation de coordination’.

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to the Fourth Restatement of US Foreign Relations Law, customary international law, apart from the rules on immunities, fails to limit the States’ power to adjudicate civil and commercial disputes.7 In Naït-​Liman, the Grand Chamber of the European Court of Human Rights concluded that the Swiss courts were not under an international obligation to rule on a claim for civil redress brought by a victim of torture committed in Tunisia, be it on the basis of universal civil jurisdiction or on grounds of necessity, ie because the claimant could not reasonably be expected to bring proceedings in Tunisia.8 Various scholars have criticised the stance taken by the Restatement and the findings (and methodology) of the European Court, arguing that the problem calls for a more nuanced assessment.9 Practice, however, remains limited overall, and there are no signs that ground-​breaking developments could arise in the near future. 3

Putting Power Considerations into a Broader Context

One possible way forward consists in reviewing the notion of jurisdiction shaped by legal positivism and redefine it in light of current developments in law and legal thinking.10 Needless to say, assessing the nature and extent of the constraints imposed by international law on the powers of States remains crucial. That said, further aspects of jurisdiction deserve to be considered. The problem of jurisdiction appears in fact to involve more than defining the extent of the powers of the concerned States. The paradigm illustrated in the previous section does not seem to provide, in fact, a convincing account of what jurisdiction in civil matters stands for in today’s practice. Two interrelated developments appear to challenge the State-​centred and power-​based approach forged by positivists, namely the privatisation and internationalisation of the law of jurisdiction. 7 8 9

10

American Law Institute, Restatement of the Law Fourth –​The Foreign Relations Law of the United States (ali’s Publishers 2018) Section 422, reporters’ note 1. Naït-​Liman v Switzerland App no 51357/​07 (ECtHR, GC, 15 March 2018). See further, in this volume, L Roorda, C Ryngaert, ‘Public International Law Constraints on the Exercise of Adjudicatory Jurisdiction in Civil Matters’, and M La Manna ‘The ECtHR Grand Chamber’s Judgment in the Naït Liman Case: an Unnecessary Clarification of the Reach of Forum Necessitatis Jurisdiction? (2019) 55 RDIPP 349. The need for reconceptualizing jurisdiction has already surfaced in literature. For a remarkable proposal in this respect, see A Mills, ‘Rethinking Jurisdiction in International Law’ (2014) 84 British Ybk Intl L 187.

174 Franzina 4

The Interests of Individuals in the Law of Jurisdiction

In shaping their rules on civil jurisdiction, States are increasingly concerned with the effective realisation of the substantive rights of the parties and with the parties’ demand for efficiency and due process. The law of jurisdiction, it is observed, features today a prominent ‘private’ dimension and can no longer be seen as being driven (chiefly) by ‘public’, ie governmental, considerations.11 Legal positivists predicate that States have final and exclusive responsibility for defining the extent and manner of exercise of individual rights, as well as for striking a balance between the interests of individuals, on the one hand, and the general interest, on the other.12 The strength of this claim has waned over time. With the advent of neoliberalism, the view has been put forward that States should support economic freedom and facilitate transactions, including by making adequate room for self-​regulation by market actors.13 Meanwhile, self-​determination has gained importance in the field of family law,14 prompted by the development of human rights and the requirements of international mobility.15 All in all, when dealing with civil and commercial matters, post-​modern States, scholars opine, tend to regard themselves less as rule-​makers and more as ‘mediators’ of the interests of ­individuals.16 The described shift has gradually changed the way in which States approach the regulation of adjudicatory jurisdiction. State rules in this area do not limit themselves to saying whether jurisdiction exists, but also address the issue of whether, to what extent and by which means local courts should in fact exercise their powers in a given case. State courts, including in civil law countries (where the influence of positivism has been particularly significant), no longer 11 12 13 14 15

16

Mailhé (n 2) 118 ff. cf A Marmor, ‘Exclusive Legal Positivism’, in J Coleman and S Shapiro (eds), The Oxford Handbook of Jurisprudence and Philosophy of Law (oup 2002) 104. H Muir Watt, ‘Aspects économiques du droit international privé’ (2004) 307 Recueil des Cours de l’Académie de Droit International 25, 119 ff. See generally the essays collected in D Fenouillet and P de Vareilles-​Sommières (eds), La contractualisation de la famille (Economica 2001). See C Kohler, ‘L’autonomie de la volonté en droit international privé -​Un principe universel entre libéralisme et étatisme’ (2012) 359 Recueil des Cours de l’Académie de Droit International 285, 398 ff, and P Wautelet, ‘Party Autonomy in International Family Relationships  –​A  Research Agenda’ in C Cauffman and JM Smits (eds), The Citizen in European private law –​Norm-​setting, Enforcement and Choice (Intersentia 2016) 23. See J Chevallier, Science administrative (3rd edn, puf 2002) 87, according to whom the exercise of State powers is set to create a situation where the interests of individuals ‘vont se trouver articulés, harmonisés, agrégés’.

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consider that they are required to entertain a case simply because they have jurisdiction over it.17 Various situations exist where they are rather instructed to refrain from ruling on the matter, or to stay the proceedings before them, where to do so would be in the interest of the individuals concerned or accord with their legitimate expectations. One noteworthy expression of States’ change of attitude is the widespread introduction of rules on lis alibi pendens in domestic legislations of private international law, in particular since the 1980s,18 often inspired by developments brought about by international conventions.19 Generally speaking, the rules on lis pendens allow local courts to refuse to exercise jurisdiction where proceedings over the same or a related dispute are pending abroad and had already been initiated when the local courts were themselves seised of the matter.20 For such rules to operate, a court must be satisfied that a stay of its proceedings would be in the interest of justice. This normally involves an assessment of whether the foreign court in question would deal with the case fairly and efficiently, and whether its future ruling would likely qualify for recognition in the forum.21 17

18

19

20

21

Courts in common law countries have long seen themselves as entitled to assess whether jurisdiction ought to be exercised in a given case under the doctrine of forum non conveniens. See recently, and for further references, A Arzandeh, Forum (Non) Conveniens in England –​Past, Present, and Future (Hart Publishing 2019) 24 ff. See, among others:  Article 9 of the Swiss Federal Statute on Private International Law (1987); Article 7 of the Italian Statute on Private International Law (1995); Article 19 of the Georgian Statute on Private International Law (1998); Article 421 of the Code of Civil Procedure of Kazakhstan (1999); Article 406(2) of the Russian Code of Civil Procedure (2002); Article 14 of the Belgian Code of Private International Law (2004); Article 93 of the Macedonian Statute on Private International Law (2007); Article 2604 of the Civil and Commercial Code of Argentina (2014); Article 25 of the Statute on Private International Law of the Dominican Republic (2014). An English translation of the above texts is found in J Basedow, G Rühl, F Ferrari and P de Miguel Asensio (eds), Encyclopedia of Private International Law (Edward Elgar 2017). See, for some early examples, Article 31(2) of the Convention of 19 May 1956 on the Contract for the International Carriage of Goods by Road (cmr), and Article 21 of the Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. On the historical evolution and the general features of the rules on parallel proceedings, see L Usunier, La régulation de la compétence juridictionnelle en droit international privé (Economica 2008)  374 ff. See also G Walter, ‘Lis Alibi Pendens and Forum Non Conveniens:  From Confrontation via Co-​ordination to Collaboration’ (2002) 4 Eur J L Reform 69. For example, Article 9 of the Swiss Federal Statute on Private International Law (n 17) provides that a stay be granted if it may be expected that the foreign court will, within a reasonable time, render a decision that will be recognisable in Switzerland.

176 Franzina The deference thus paid to the jurisdiction of other States rests on the assumption that local and foreign courts may, generally speaking, be considered equivalent. Foreign authorities, no matter how different their procedural and substantive rules may be from those in force in the forum, are seen as discharging, in essence, the same task as local courts, and are accordingly presumed to deserve a measure of trust. By instructing its courts to take the jurisdiction of other States into account, the forum State acknowledges that the mere possession of jurisdiction is not, in itself, a sufficient reason for its own courts to entertain a case. Other aspects, including a concern for due process, procedural efficiency and the prevention of conflicting judgments, warrant consideration. Another obvious expression of the increased importance of individual interests in the regulation of jurisdiction is the expansion of the scope of party autonomy.22 Several codifications of private international law around the world, in particular those enacted or reformed after the 1980s, enable the parties to a dispute to derogate by agreement from the jurisdiction of local courts and have their case decided by the courts of another State.23 Here, too, the point is implicitly made that the functions performed by the courts of the various States are, in principle, equivalent. Arbitration agreements convey basically the same idea, insofar as they posit that, for the purposes of settling a dispute (one suitable for arbitration), the contribution of an arbitral tribunal is not intrinsically different from that of a State court.24 Which option is followed depends, accordingly, on the preferences of the parties. The above-​described development entails a redefinition of the role of States in adjudication. The exercise of jurisdiction is not a simple expression of power. It presents a functional element and may be described as involving a combination of sovereignty and responsibility. The term responsibility is used here to signal that States, while enjoying significant freedom as regards the design of their jurisdictional rules, no longer 22 23

24

See generally, in recent literature, A Mills, Party Autonomy in Private International Law (cup 2018). See, for instance: Article 2060 of the Civil Code of Peru (1984); Article 3–​7 of the Japanese Code of Civil Procedure (1996); Article 47 of the Turkish Code of Private International Law (2007); Article 1068 of the Romanian Code of Civil Procedure (2010); Article 94 of the Portuguese Code of Civil Procedure (2013); Article 104 of the Statute of Private International Law of Montenegro (2014). For a translation see, again, J Basedow, G Rühl, F Ferrari, P de Miguel Asensio (n 14). See further JC Fernández Rozas, ‘Le rôle des juridictions étatiques devant l’arbitrage commercial international’ (2001) 290 Recueil des Cours de l’Académie de Droit International 9, 41 ff.

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see themselves as possessing unrestricted discretion in this field. Responsibility is a relational notion. It involves the idea that the agent, however free in organising its conduct, is ultimately accountable for its decisions.25 Adjudicatory jurisdiction, while still manifesting itself as a power, is in fact among the means that a State may resort to for the purposes of fulfilling its responsibilities. The word responsibility is sufficiently broad as to cover different situations beyond those where the forum State is, properly speaking, under an international obligation to exercise (or to refrain from exercising) jurisdiction. Jurisdiction may be understood to involve an element of responsibility even where there is apparently no international obligation restricting the freedom of the State concerned. This occurs insofar as the jurisdictional powers in question serve a policy for which the State is (at least politically) accountable, such as one enshrined in a non-​binding international instrument or in the Constitution of the State itself. In the end, the problem with adjudicatory jurisdiction is not just whether jurisdiction exists, but also for which purposes it ought to be exercised. Put otherwise, a proper understanding of jurisdiction requires considering both its power aspect and its functional dimension. 5

The Internationalisation of the Law of Jurisdiction

The second half of the 19th century saw a major turning point in private international law.26 The discipline underwent a process of ‘domestication’ prompted by the rise of positivism and liberalism, as a result of which its rules, including the rules on jurisdiction, began to be seen as domestic in nature and entrusted with a ‘private’ function.27 Today the tide is turning again. The view has been convincingly advanced by several authors that the relationship between public and private international law, as they are conventionally labelled, ought to be reassessed.28 In this 25 26 27 28

V Roeben, ‘Responsibility in International Law’ (2012) 16 Max Planck Ybk UN L 99, 105 ff. R Banu, Nineteenth-​century Perspectives on Private International Law (oup 2018). See generally H Muir Watt, ‘Private International Law Beyond the Schism’ (2011) 2 Transnl L Theory 347. See also L Corbion, Le déni de justice en droit international privé (puam 2004) 92 ff. See on the whole topic TM de Boer, ‘Living Apart Together: The Relationship Between Public and Private International Law’, (2010) 57 Netherlands Intl L Rev 183; L Reed, ‘Mixed Private and Public International Law Solutions to International Crises’ (2003) 306 Recueil des Cours de l’Académie de Droit International 177; DP Fernández Arroyo and MM Mbengue, ‘Public and Private International Law in International Courts and Tribunals:  Evidence of an Inescapable Interaction’ (2018) 56 Columbia J Transnl L 797; A  Mills, ‘Private Interests and Private Law Regulation in Public International Law

178 Franzina context, it is being increasingly acknowledged that the rules on conflicts of laws and those on jurisdiction, in spite of being largely domestic in terms of their source, are not, or at least not necessarily, domestic in terms of their function.29 Rather, those rules appear to have an international significance and in fact largely contribute to the governance of international phenomena.30 The rules resulting from unification efforts deployed regionally or internationally offer a particularly clear illustration of the role that adjudicatory jurisdiction may play for the realisation of common policies. The law of jurisdiction is increasingly shaped, today, by uniform texts. Regional integration has served as a key factor for this development. Economic integration has prompted harmonisation in the European Union31 and, less spectacularly, in Mercosur.32 Concurrently, numerous multilateral agreements containing uniform rules on civil jurisdiction have been adopted under the auspices of specialised international organisations of a universal character. That is the case, for example, of the Unidroit Convention of 24 June 1995 on Stolen or Illegally Exported Cultural Objects,33 or the London Convention of 23 March 2001 on Civil Liability for Bunker Oil Pollution Damage,34 elaborated in the framework of the International Maritime Organization. Meanwhile, the

Jurisdiction’, in S Allen, D Costelloe, M Fitzmaurice, P Gragl and E Guntrip (eds), The Oxford Handbook of Jurisdiction in International Law (oup 2019) 330. As regards the movement of ideas underlying the reassessment of the conventional narrative regarding the public and private divide in international law see also D Kennedy, ‘International Law and the Nineteenth Century: History of an Illusion’ (1996) 65 Nordic J Intl L 385. 29 See generally A Mills, ‘The Private History of International Law’ (2006) 55 iclq 1, and Id, ‘The Identities of Private International Law: Lessons from the U.S. and EU Revolutions’ (2013) 23 Duke J C Intl L 445. 30 A Mills, ‘Connecting Public and Private International Law’ in V Ruiz Abou-​Nigm, K McCall-​ Smith and D French (eds), Linkages and Boundaries in Private and Public International Law (Hart Publishing 2018)  13. See also KJ Hood, ‘ “International” Rules in an Internal Setting’ ibid 53. 31 Reference is made to the vast body of legislative measures enacted by the Union based on the competences currently contemplated in Article 81 of the Treaty on the Functioning of the European Union, including, notably, Regulation (EU) No 1215/​2012 of the European Parliament and of the Council of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters [2012] OJ L 351/​1. 32 See, for instance, the Buenos Aires Protocol of 5 August 1994 on International Jurisdiction in Contractual Matters, available at (last accessed 31 December 2019). 33 (last accessed 31 December 2019). 34 (last accessed 31 december 2019).

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Hague Conference on Private International Law, whose mission is to work for the progressive unification of the rules of private international law, has produced several texts dealing inter alia with jurisdiction, including, for example, the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-​operation in Respect of Parental Responsibility and Measures for the Protection of Children.35 The efforts deployed towards the harmonisation of the law of adjudicatory jurisdiction indicate that, with increasing frequency, States regard adjudication as an important tool for the pursuit of shared goals and the governance of common concerns, such as the proper functioning of a region’s internal market, the effective protection of cultural heritage, the prevention of, and reparation for, marine pollution or the realisation of the best interests of children. The jurisdictional rules found in harmonised texts have a clear functional orientation. They are not concerned with the powers of Contracting States as such, but rather aim at ensuring that the courts of those States effectively contribute –​by exercising their jurisdiction or by refusing to do so, as the case may be –​to the relevant common policies. Unsurprisingly, jurisdictional issues are dealt with by those instruments in a cooperative, rather than a confrontational, fashion. Cooperation is inherent to the very fact of setting forth a uniform body of jurisdiction-​conferring rules, for unification obviously mitigates the risk of conflicting claims of authority. Cooperation, however, implies more than uniformity in the allocation of cases. It also implies a measure of dialogue between the authorities of States whenever dialogue is conducive to the achievement of common goals. Dialogue may be useful, for instance, where the authorities of one State need information that is possessed by the authorities of another, or where the implementation of a measure given in one State requires the assistance of the relevant agencies of another State.36 There may be actually more to it than that. A cooperative approach to jurisdiction may result in the assessment of jurisdiction itself being the subject of exchanges and mutual arrangements between the courts concerned.37 The 35 (last accessed 31 December 2019). 36 See generally MJ Segovia González, Les accords judiciaires de coopération internationale’ (Larcier 2018). 37 See E Pataut, ‘Remarques sur la compétence internationale’, in E Pataut, S Bollée, L Cadiet, E Jeuland (n 6) 23, 37 ff.; the author argues that, as a result of the harmonisation pursued by the Member States of the EU in the field of civil jurisdiction, the relations among the Member States of the EU, on the one hand, and the relations between those States taken individually and any third countries, on the other, have become fundamentally different.

180 Franzina Hague Convention of 1996 on the protection of children, mentioned above, is particularly significant in this regard. The Convention makes it possible for the authorities of the various Contracting States to exchange views on any matter of common concern, in particular through their respective Central Authorities, and mutually solicit assistance (for instance, where the need arises to discover the whereabouts of a child who is believed to be present in a Contracting State other than the Contracting State whose courts have jurisdiction over his or her protection).38 Furthermore, the Convention provides that, where the interests of the child so require, the courts of a Contracting State may, among other things, request the authorities of another Contracting State –​which the former believe to be better placed to assess the child’s interests –​to assume jurisdiction to take measures directed at the protection of the child in question.39 By joining the Convention, States in fact enter into a framework of dialogue and cooperation which provides for a broad range of tools designed to enhance the protection of children:  tools relating to jurisdiction, which involve both the harmonisation of the relevant power-​conferring rules and the adjustment of their practical operation where the circumstances so require; tools concerned with the recognition and enforcement of protection measures; and tools regarding, more generally, the assistance that the authorities of one Contracting State are entitled to seek from the authorities of another. The above developments suggest, in conclusion, that adjudicatory jurisdiction can no longer be dealt with in purely binary terms. As noted, the question is not just whether jurisdiction exists or is lacking in a given case. Where a matter involves policies that are common to several States, the regulation of jurisdiction does not merely consist in resolving a conflict. It rather involves an exercise of governance. Jurisdiction, to use a distinction that can be better expressed in French than in English, is most suitably approached as an object of ‘régulation’ rather than one of ‘règlementation’.40 The latter notion describes a typically modern response to the quest for abstract predictability, whilst the

38 39 40

The difference, according to this author, does not lie so much in the unification of the heads of jurisdiction, which should in principle be the same no matter whether the situation is solely connected with Europe or has ties also with a third country, but rather in the cooperation that harmonisation has entailed among the Union’s Member States. See, in this connection, Article 31(c) of the Convention. See further on this topic LJ Silberman, ‘Cooperative Efforts in Private International Law on Behalf of Children: The Hague Children’s Conventions’ (2006) 323 Recueil des Cours de l’Académie de Droit International 261. G Timsit, ‘Les deux corps du droit –​Essai sur la notion de régulation’ (1996) 78 Revue française d’administration publique 375. See generally on the relevance of this distinction for the purposes of the law of adjudicatory jurisdiction L Usunier (n 19) 11 ff.

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former reflects a post-​modern concern for materially convenient solutions, adjusted to the peculiarities of the case. Where common concerns are at stake, State courts are called upon to operate as nodes of a network, rather than solitary decision-​makers.41 What eventually produces the desired result (eg the taking of measures based on an appropriate assessment of the interests of the child in question, or the swift return of illegally transferred artworks) is not, or at least not necessarily, the individual action of one or more States, but rather the coordinated effort of the various interested States, based on the shared concern of those States for a particular goal or value (the primacy of the best interests of the child, the preservation of the cultural heritage of States etc).42 Significantly, where coordination is possible between the courts of different States, the availability of concurrent heads of jurisdiction becomes relatively harmless and is even likely to prove beneficial. Indeed, one way to advance a given substantive policy is to provide the plaintiff with the opportunity to bring proceedings for the enforcement of that policy before the courts of several States, on an alternative basis. A well-​informed claimant will then choose the venue of litigation after weighing the comparative benefits of the different options available. This may involve assessing, for example, whether evidence would be more easily obtained in one State rather than in another, or whether legal advice would be available in a given country for more affordable fees than in another country. Communication among judicial authorities and coordination of legal proceedings would then be crucial to mitigating, if not avoiding entirely, the disadvantages that a proliferation of fora would otherwise cause. It is important to stress that domestic rules of jurisdiction, not just internationally uniform rules, can be designed in such a way as to address shared concerns and foster cooperation. Clearly, uniform rules are particularly efficient in this respect, all the more so where they build on a clearly stated set of common goals and come with details regarding the extent of, and the conditions for, mutual assistance among the States concerned. By virtue of their international character, uniform rules can achieve results that are likely precluded, in practice, to domestic ­legislation. In fact, inter-​jurisdictional dialogue can only be approached by domestic legislation unilaterally, ie from the standpoint of the enacting State alone and 41 ibid 23 ff. 42 cf the remarks of Michaels (n 3) 126 on collaboration between courts as a possible answer to the challenges posed by the transmutation of territoriality as a constituent element of jurisdiction in the context of globalisation.

182 Franzina through measures that only bind the authorities of that State. Unilateral cooperation is inevitably more limited and more cautious than the cooperation ensured under uniform rules. Be that as it may, it is significant that, especially under recent reforms, various States have made it clear in their legislation that they are ready to limit the exercise of their jurisdiction and are willing to exchange or cooperate with foreign authorities in order to advance policies they regard as important. The domestic rules on lis pendens, referred to above, fit into this picture, as do the domestic provisions governing the unilateral provision, by State courts, of judicial assistance to foreign authorities, and more generally the communications that local courts are permitted to exchange, including directly, with their counterparts in other countries.43 6

Jurisdiction: from Conflict to Process

The preceding analysis indicates that the issues surrounding the regulation of adjudicatory jurisdiction in civil matters are more complex than the traditional understanding would suggest. Cross-​border disputes do not just raise the question of whether jurisdiction should lie with the courts of a State. The question also arises of how the courts of the States concerned ought to address the issues raised by the management of the dispute in order to achieve their common or convergent policies. The law of jurisdiction, thus described, involves the regulation of processes, rather than simply the resolution of conflicts. The traditional focus on the extent of the jurisdictional powers of States should be reconsidered accordingly. A  more comprehensive approach is required in order to capture the various dimensions of jurisdiction and appreciate the importance of other related issues, namely those relating to the recognition of judgments, the coordination of parallel proceedings and the supply of international judicial assistance.

43

See, for instance, the Spanish Statute of 2015 on international judicial cooperation in civil matters (Ley de cooperación jurídica internacional en materia civil) (last accessed 31 December 2019). Article 4 of the Statute enables Spanish courts to engage in direct communications with foreign authorities as a means to enhance cooperation and pursue coordination in the management of cross-​border cases. See also Article 2611 of the Civil and Commercial Code of Argentina (n 17), which requires that Argentine courts provide ‘broad judicial cooperation’ (‘amplia cooperación jurisdiccional’) to foreign authorities.

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Interestingly, the law of jurisdiction in civil and commercial matters has been very slow in developing a cooperative dimension. With respect to criminal matters, States became aware of the importance of dialogue and cooperation well before they did so in the sphere of private law.44 Such differentiations are hardly surprising in themselves. The compartmentalisation of the law of jurisdiction, as observed by Cedric Ryngaert, stems from the very nature of the concept of jurisdiction. As an abstract concept, jurisdiction is in need of application and elaboration in different areas of law, and accordingly develops in different ways depending on the sector considered.45 Arguably, the reluctance of States to engage in judicial cooperation in the area of civil law (and to embrace a cooperative understanding of jurisdiction itself) reflects to an extent the ‘epistemological tunnel vision’, as Horatia Muir Watt put it, which private international law developed in the course of the 19th century under the aegis of the liberal divides between law and politics and between public and private (international) law.46 The acknowledgement of the political significance of the adjudication of civil disputes and the relevance of private law adjudication to the governance of common concerns is paving the way to a new paradigm of adjudicatory jurisdiction, one combining power with responsibility through dialogue and cooperation. 7

Concluding Remarks

The adjudication of civil disputes may be a formidable tool for advancing international policies and addressing global concerns, including the protection of fundamental human rights. The potential of the rules on adjudicatory jurisdiction, it is argued, cannot be exploited in full without a renewed understanding of the notion of jurisdiction. The traditional conception obscures, in fact, two key points. First, the powers of States, including those relating to the adjudication of civil disputes, are more than a sheer expression of sovereignty: they are among the instruments

44 45 46

On the early history of judicial cooperation in criminal matters, see generally R Zimmermann, La coopération judiciaire internationale en matière pénale (4th edn, Bruylant /​Stæmpfli 2014) 1 ff. C Ryngaert, Jurisdiction in International Law (2nd ed, oup 2015) 1. H Muir Watt, ‘The Relevance of Private International Law to the Global Governance Debate’ in H Muir Watt and DP Fernández Arroyo (eds), Private International Law and Global Governance (oup 2014) 1.

184 Franzina whereby States meet their (international and/​or constitutional) responsibilities. Second, in a globalised world, individual States are rarely in a position to fulfil such responsibilities by acting alone:  cross-​border cases, by definition, call instead for joint or coordinated efforts on the part of the States concerned. Focusing on the delimitation of States’ powers is likely to fuel confrontation among States, all the more so where such delimitation is pursued under hard-​ and-​fast rules aimed at maximising abstract predictability. A broader approach  –​one acknowledging the importance of cooperation, and the role that dialogue already plays in the relations between (some) States –​better reflects the changing reality of adjudicatory jurisdiction in the practice of States. Determining the venue of litigation remains, of course, important. But that is just one of the many issues that the law of jurisdiction is called upon to ­address. In order to tackle global concerns, including the concern for the protection of victims of egregious violations of human rights, which may be addressed through civil redress, several States may want to act, or indeed be required to do so. The problem is not only and so much about the demarcation of States’ competences, but rather about the distribution and organisation of their tasks. The distinctive pattern is horizontal coordination, not hierarchy.47 In fact, efficiency, not just legitimacy, matters. Against this backdrop, the refusal by the courts of a State to exercise jurisdiction on the ground that the case would be more conveniently tried elsewhere does not amount to a surrender of sovereignty. Such a refusal may instead reflect a responsible way of accommodating competing claims by way of coordination. Actually, by refraining from ruling on the substance of a dispute, the courts concerned do not necessarily omit to contribute to the protection of the victim. Their contribution may in fact take other forms. For instance, they could issue provisional measures against assets located in the State where they sit, so as to secure the claims that form the subject of proceedings on the merits brought by the victim in another State, or assist the courts of that State whenever the need arises to take evidence locally. Measures of this kind may well prove crucial to the protection of the victim’s rights. On the other hand, but for the same reasons, a State’s courts would hardly be acting responsibly if they declined their jurisdiction without assessing the implications of such a dismissal for the effective protection of the claimant’s

47

Cf D French and V Ruiz Abou-​Nigm, ‘Jurisdiction:  Betwixt Unilateralism and Global Coordination’ in V Ruiz Abou-​Nigm, K McCall-​Smith and D French (n 29) 92 ff.

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rights. Under the broad conception advocated above, the issue of jurisdiction cannot be reduced to an on/​off dynamic, where the existence of jurisdictional powers and the legitimacy of their exercise is all that matters. Regardless of whether international obligations exist that require the forum State to entertain (or dismiss) a given case, the problem of jurisdiction appears to involve an appraisal of the role that the various States concerned can play in the assessment of the victim’s claim and the protection of their rights. In the end, adjudicatory jurisdiction is neither something that States can deal with in isolation, as if the views and claims of other States were just a contingent or secondary factor, nor something for which international law provides, at present, a comprehensive regulation. A  renewed understanding of what jurisdiction stands for, freed from the legacy of positivism, provides a promising framework for shaping workable and efficient solutions for the management of cross-​border civil cases touching on common, or indeed ­global, concerns.

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Index AAA and others v Unilever PLC and Unilever Tea Kenya Limited [2018] 151 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Compensation, Judgment) [2012] 46 Akpan and Milieudefensie v Royal Dutch Shell PLC and Shell Petroleum Development Company of Nigeria Ltd [2013] 151–​152 Al-​Adsani v United Kingdom [2001] 5, 35–​36 Alien Torts Claims Act see Alien Tort Statute Alien Tort Statute 83–​84, 90–​91, 142, 159–​160, 162–​163, 167–​168 American Convention on Human Rights (achr) 111 Anchor defendant 86–​87, 149–​153 Arlewin v Sweden [2016] 22 Business and human rights vii, 81, 140–141 Case Concerning the Factory at Chorzów (Germany v Poland) (Jurisdiction) [1927] 101 Case Concerning Oil Platforms (Islamic Republic of Iran v United States) (Preliminary Objections) [1996] 58–​60 Case of the SS ‘Lotus’ (France v Turkey) (Judgment) [1927] 121 Christine Goodwin v United Kingdom [2002] 63–​64 Citizenship see Nationality Collection of evidence 49–​51, 142, 181, 184  See also Judicial assistance Collective reparation see Reparation Committee against Torture  General comment no 3 viii​, 16–​20 Marcos Roitmann Rosenmann v Spain 17–​18 Z v Australia 17–​18 Competence of the Community to conclude the new Lugano Convention (Opinion 1/​03) [2006] 147–​149 Conflict of laws rules 93–​94, 162, 165 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [1984] viii​, 10, 16–​20, 31, 35, 38–​42, 51, 69–​70, 76–​77, 133

Convention for the Protection of Human Rights and Fundamental Freedoms [1950]  Article 1 10–​11, 15 Article 3 34 Article 4 64 Article 6 vii​, 2–​7, 9–​15, 22, 25–​31, 34, 38–​40, 48–​52, 66, 68–​69, 105–​106, 130, 132–​133, 149, 154, 167 Article 12 63–​64 See also Fair trial, Protocol No 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms [1963] Convention on Civil Liability for Bunker Oil Pollution Damage [2001] 178–​179 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-​operation in respect of Parental Responsibility and Measures for the Protection of Children [1996] 178–​179 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters [1968] 122–​127 Convention on Stolen or Illegally Exported Cultural Objects [1995] 178–​179 Convention on the Prevention and Punishment of the Crime of Genocide [1948] 51–​52 Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters [2019] 125 Convention Relating to the Status of Refugees [1951] 16, 20–​22, 31–​32 Corporate veil (lifting of the) 142 See also Anchor defendant Dédoublement fonctionnel 104–​105, 107 Demir and Baykara v Turkey [2008] 64 Denial of justice see Right of access to a court Diplomatic relations 13, 52–​54, 77, 83 Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua) (Judgment) [2009] 60

205

Index European Convention on Human Rights see Convention for the Protection of Human Rights and Fundamental Freedoms Evidence see Collection of evidence Exorbitant fora 78–​80, 83, 120–​133, 154, Fair trial vii, 39, 122, 128–​130, 134–​135, 137 Federal Statute on Private International Law see Swiss Federal Statute on Private International Law Filártiga v Peña-​Irala [1980] 160, 167–​168 Forum actoris 126–​128 Forum connexitatis see Anchor defendant Forum necessitatis  in general 3–​4, 6, 8, 12–​13, 21–​27, 29–​31, 35, 122–​125, 130–​131, 133–​134, 149, 160, 172–​173 relation to universal civil jurisdiction  22–​23, 30–​31, 74, 76, 78–​80 (non-​)availability of alternative means of protection 8, 15, 23–​25, 28–​34 sufficient connection with the forum  4, 6, 10–​13, 21–​26, 29–​31, 130–​132, 136 Forum non conveniens 24–​25, 34, 128–​129, 133–​134 Forum commissi delicti see Locus commissi delicti Forum of necessity see Forum necessitatis Fragmentation 61 French Civil Code 127–​128 Geneva Convention on the Status of Refugees see Convention Relating to the Status of Refugees, Golder v United Kingdom [1975] 66, 68–​69, 72, 130 Guiding Principles on Business and Human Rights [2011] see Business and human rights Habitual residence 6, 20–​22 Human Rights Committee  General Comment No 24 62 Immunities see Jurisdictional immunities of States Impunity (fight against) 1, 99–​100 Institut de Droit International  Resolution on Universal Civil Jurisdiction with regard to Reparation for

International Crimes ix, 16–​17, 104–​105 Inter-​American Court of Human Rights 46, 62, 111–​112 Interference in another State’s internal affairs 49, 77, 87–​88, 90–​92, 103–​104, 134–​135 International crimes (States’ obligations related to)  punishment of individual perpetrators 1, 42n15, 51–​52, 77–​78n16, 100, 103, 108, 110 reparation of damages suffered by victims viii​, 1, 3–​4, 9, 16–​17n41, 31, 40n9, 50, 52–​54, 94–​95, 100, 102–​107n22, 107–​118, 134–​135n52, 141, 164 International Criminal Court 1, 100, 113, 164, International judicial function 42–​45, 52–​54 International Law Association  Committee on International Civil Litigation and the Interests of the Public 21–​22 International Law Commission  Draft Articles on State Responsibility 102 International Law Institute see Institut de Droit International International unification of private international law 122–​125, 145–​147, 178–​182 Interpretation see Treaty interpretation Italian Statute on Private International Law [1995] 126–​127 Jones v The United Kingdom [2014] viii​, 43–​44, 46, 49 Jorgic v Germany [2007] 51–​52 Judicial assistance 181–​184 Judicial law making 1–​2, 42–​45 Jurisdictional immunities of States 5, 7, 13, 19–​20n50, 43–​44, 47, 49, Jurisdictional Immunities of the State (Germany v Italy; Greece intervening) (Judgment) [2012] 43–​44, 47, 102 Kiobel v Royal Dutch Petroleum [2013]  83–​84, 142 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276(1970) (Advisory Opinion) [1971] 60

206 Index Legality of the Use of Nuclear Weapons (Advisory Opinion) [1996] 44 Legal positivism 172–​175 See also, Case of the SS ‘Lotus’ (France v Turkey) (Judgment) [1927] Legitimate aim 4–​5, 11–​14, 26, 28–​29, 49, 69, 71 Lex loci delicti see Locus commissi delicti Lis alibi pendens 129, 175, 182 Locus commissi delicti 33–​34, 161, 163, 165n21, 166–​169 Lugano opinion see Competence of the Community to conclude the new Lugano Convention (Opinion 1/​03) [2006] Margin of appreciation 12, 14, 23n60, 25–​27, 28n77, 49, 52–​54, 65–​66, 7​ 1, 74 Multinational corporations see Business and human rights Naït-​Liman v Switzerland [2016]  Court’s assessment and findings 1–​2, 4, 7, 12, 28n75, 38, 47–​48, 51, 53–​54, 56, 68–​71, 77–​78, 130–​131, joint dissenting opinion of Judges Karakaş, Vučinić and Kūris 4n2, 40–​42 Naït-​Liman v Switzerland (gc) [2018]  Court’s assessment and findings vii, ix–​3, 38, 48–​49, 53–​54, 56, 68, 70–​71, 74, 76, 78–​80, 93n81, 105–​107, 116, 130–​131, 133–​134, 154, 159–​162, 172–​173 partly dissenting opinion of Judge Wojtyczek 9–​11 dissenting opinion of Judge Dedov 13n30, 17–​18, 21n56, 52–​53 dissenting opinion of Judge Serghides 28n73, 30 Markovic v. Italy [2006] 10 Nationality 6, 20–​22, 31–​32, 126–​127 Non-​intervention see Interference in another State’s internal affairs Official see State official Okpabi and others v Royal Dutch Shell PLC and Shell Petroleum Development Company of Nigeria Ltd [2018] 151–​152 Opinio juris 87–​89, 106 Ordre public see Public policy Owusu v Jackson [2005] 129

Positive obligations of States 36, 40–​42 Post-​conflict and reconciliation processes 100, 109–110 Parallel proceedings see Lis alibi pendens Positivism see Legal positivism Private and public international law divide (questioning of) 74–​75, 85, 177, 183 Privilège de juridiction see French Civil Code Procureur c Habré [2017] 115 Proportionality 4, 8, 10–​14, 22, 25, 28–​30, 35 Protocol No 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms [1963] 18–​19 Public international law see Private and public international law divide (questioning of) Public policy ix, 24​, 168–​169 Rantsev v Cyprus and Russia [2010] 64 Reconciliation processes see Post-​conflict and reconciliation processes Recognition and enforcement of foreign judgments 78–​80, 83, 121–​122, 125, 127–​128, 134–​135, 145, 175, 179–​180, 182 Regime interaction 64–​65 Regulation (EC) 44/​2001 on jurisdiction and the recognition and enforcement of judgments 123, 146–​148 Regulation (EC) 864/​2007 on the law applicable to non-​contractual obligations (Rome ii) 166–​167 Regulation (EC) 4/​2009 on maintenance obligations 23, 122–​125 Regulation (EU) 650/​2012 on matters of succession 23, 122–​125, 128n37 Regulation (EU) 1215/​2012 on jurisdiction and the recognition and enforcement of judgments  Article 6 122–​125, 145, 147 Article 63 151–​152 Regulation (EU) 2016/​1103 on matrimonial property regimes 23, 122–​125 Regulation (EU) 2016/​1104 on the property consequences of registered partnerships 23, 122–​125 Reparation, inter-​State 99–​101, 110 see also International Crimes (States’ obligations related to), reparation of damages suffered by victims

207

Index Residence see Habitual residence Restatement Third of US Foreign Relations Law 80–​81 Restatement Fourth of U.S. Foreign Relations Law 75, 78–​82, 172–​173 Right of access to a court 4, 6–​8, 10–​11, 14–​28, 66–​67, 130 Self-​contained regimes see Regime interaction State official 5–​6, 10–​12, 14, 16–​17, 20, 33​, 38–​39,​ 44, 49, 121, 134​, ​166n24, State responsibility 99–​104, 108 Statute of the International Court of Justice [1945] 42–​43, 48, 76 Statute of the International Criminal Court [1998] 1, 113–​114, 117, 164–​165 Statute of the Permanent Court of International Justice [1920] 43–​44 Swiss Federal Statute on Private International Law [1987] 6, 24–​26, 29–​30, 40, 130–​131 Third World Approaches to International Law 92–​93 Torture viii​, 3–​7, 9–​21, 24, 28–29, 31, 33, 35, 36, 38–​42, 48–​54, 69–​70, 76–​77, 105–​106, 110, 130–​131, 135, 159–​163, 166–​168, 172–​173 See also Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [1984], United Nations Committee against Torture’s General comment no 3 (2012)

Tyrer v United Kingdom [1978] 65 Transitional justice see Post-​conflict and reconciliation processes Treaty interpretation  in general 57 doctrine of effectiveness 57–​59, 71 evolutionary 60–​61, 65, 70–​71 of human rights treaties 61–​63 systemic 59–​60, 71 See also Vienna Convention on the Law of Treaties [1969], Regime interaction Treaty on European Union [2007]  Article 3 152–​153 Article 6 152–​155 Universal civil jurisdiction  in general viii, 1–​4, 9, 12n28, 14–​17, 35–​36, 38–​42, 48, 52–​54, 56, 74n2, 76–​80, 83–​84, 99, 133–​135, 142, 159–​161, 170, 172–​173 relation to criminal jurisdiction 15–​16, 103–​107 UN Guiding Principles on Business and Human Rights [2011] 141, 144–​145 Vedanta Resources PLC and another v Lungowe and others [2019] 150 Vienna Convention on the Law of Treaties [1969]  Article 31 19–​20, 57, 63–​68, 71 Article 32 58 World Bank 88–​89