The article constitutes an argument in the debate over the legitimacy of exercising domestic jurisdiction over extraterritorial human rights violations. It seeks to answer a question of the current and future role of national courts in enforcing human rights with respect to extraterritorial violations. The article thus presents and analyses examples of judicial practice from different jurisdictions (United States, Europe and Canada). It also discusses the interrelation between adjudicatory jurisdiction and sovereignty. The survey of the recent case-law proves that in many countries there is a tendency of limiting extraterritorial and universal jurisdiction. The article concludes i.e. that perhaps the time has come to substitute a doctrine of forum non conveniens with the principle of forum necessitatits.
See for more elaborated analysis Shelton, supra note 14, pp. 14–36.
Ryngaert, supra note 26, p. 7.
See generally Shearer, supra note 27 pp. 166–171; Dixon, McCorquodale and Williams, supra note 36, p. 276 et seq.
Staker, supra note 34, p. 315.
See Keitner, supra note 4, p. 809 (where the author is giving examples of us executive directing the courts with respect to personal immunities from civil proceedings).
Scott, supra note 24, p. 54.
Staker, supra note 34, pp. 323–324. The most recent example would probably be the Council of Europe Convention against Trafficking in Human Organs (ects No. 216) opened for signature on 25.03.2015, Article 10 § 6.
Fox, supra note 28, p. 175.
Shaw, supra note 27, p. 668.
Tomuschat, supra note 15, pp. 330–335.
Shaw, supra note 27, pp. 668–670.
Tomuschat, supra note 15, p. 331.
Since2003, there are four instances when Belgian courts may hear cases of human rights abuses that occurred outside Belgium: 1) if the requisite tie to Belgium is present; 2) if other States with a link to the crime do not have an independent system of justice; 3) the accused is not a governmental official protected by immunity, 4) if Belgium has an obligation under treaty or customary law to submit cases to its authorities for proceedings. See ibid. pp. 293–294.
Since2011, a consent of the Director of Public Prosecutions is required before an arrest warrant is issued.
Tomuschat, supra note 15, p. 335.
Tomuschat, supra note 15, p. 374. It is noteworthy that Princeton Principles on Universal Jurisdiction of 2001 explicitly refer only to universal jurisdiction as a criminal one. See differently, Donald F. Donovan, Anthea Roberts, “The Emerging Recognition of Universal Civil Jurisdiction”, 100 American Journal of International Law (2006) p. 142.
Tomuschat, supra note 15, p. 358.
Scott, supra note 24, p. 53.
As observed by Stephens, supra note 43, p. 1468.
Lee, supra note 93, p. 1647; Stephens, supra note 43, p. 1479.
Cited after Stephens, supra note 43, p. 1479.
Cited in Swan, supra note 82, p. 82.
Swan, supra note 82, pp. 94–95.
Flauss, supra note 5, pp. 405–406.
130 S. Ct. 2869 (2010). A group of Australian investors (plaintiffs) claimed that the defendants had arranged fraud against them. The only connection with the us was the fact that the main defendant company had a branch on Florida.
Kiobel, supra note 44, § 189.
Shearer, supra note 27, p. 162.
Ryngaert, supra note 26, p. 71.
Kiobel, supra note 44, § 1669.
Ramsey, supra note 114, p. 67.
Lee, supra note 9, p. 1648.
Stephens, supra note 43, p. 1543.
Lee, supra note 93, p. 1664.
American Society of International Law, supra note 134, p. iii E-27.
Fox, supra note 28, p. 178. According to the Author, common law courts have many separate and independent broadly based jurisdictions, and – as a consequence – enjoy some extent of discretionary power.
Jägers, Jesse and Verschuuren, supra note 146, pp. 38–39.
Dixon, McCorquodale and Williams, supra note 36, pp. 797–800.
American Society of International Law, supra note 134, p. iii.e-22–23.