The chapter offers a detailed summary of the judgment rendered by the Grand Chamber of the European Court of Human Rights (ECtHR) in Naït-Liman v Switzerland, coupled with a critical evaluation of the conceptual and normative premises underpinning the judicial reasoning. The appraisal is performed against the backdrop of the ECtHR’s jurisprudence as well as with reference to the broader framework of international human rights law and practice, both judicial and non-judicial in nature.
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 on the understanding that jurisdiction, as a legal notion, is concerned essentially with power. The practice of States, however, is evolving. 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. The contention is made that a renewed understanding of jurisdiction, one acknowledging the role that cooperation and dialogue between courts play in the management of cross-border disputes, would help shape workable responses to the challenges posed by the recourse to civil litigation in connection with international wrongs.
At the very core of the ‘fragmentation’ discourse, human rights law is often depicted as the self-contained regime par excellence, benefitting from somewhat specific rules and principles, which often derogate from general international law. However controversial and debatable, this stance may be at least partially founded with reference to the issue of treaty interpretation. The rule provided under Article 31 of the Vienna Convention on the Law of Treaties is often stretched and applied in a more flexible way by human rights instances charged with the interpretation and application of human rights treaties, such as the Inter-American Court of Human Rights and the European Court of Human Rights. In the recent Naït-Liman case, nevertheless, the latter seems to have embraced a different and more restrictive attitude towards interpretation, downplaying the concerns surrounding the effet utile of the provision under Article 6 of the European Convention on Human Rights.
When evaluating the chances of bringing a compensation claim abroad for human rights violations, one always addresses adjudicatory jurisdiction concerns. However, the issue of the law applicable is not less important and just as likely to determine the outcome of a case as the jurisdictional title resorted to. Though one may be tempted to infer that a claim based on universal civil jurisdiction should be governed by international law, this is not necessarily the case, or, better said, this may not be the case with reference to each and every aspect of the dispute. Both the legal order of the forum and the legal order of the State where the violation occurred may very well have a role to play.
The extent of the jurisdictional power of States has been disputed since the 1927 pcij decision in the Lotus case. Two doctrinal approaches hence emerged and consolidated: one embracing the Court’s position, and underlying the inherent and unbridled nature of States’ jurisdiction; the other positing that States’ jurisdiction is not innate but rather granted to States by international law. According to the latter view, a permissive norm under international law would be required for a State to exercise extraterritorial jurisdiction. Nearly a century later, not much seems to have changed. The legitimacy of exorbitant fora provided by national legal orders, however tempered by judicial self-restraint, is still debated. The ECtHR decision in the Naït-Liman case yet confirms this assessment.
The contribution aims at demonstrating that the traditional divide between public and private international law, whereby the former only regulates State conduct, while the latter is meant to take care of the interests of private parties (both natural and legal persons) is as old-fashioned as it is unsatisfactory. Every exercise of jurisdiction on the part of national judges, be it in the domain of public international law issues or in the realm of dispute settlement involving private parties, is always a symptom of State jurisdiction. Hence, it is regulated under the rules and principles of public international law. Even the exercise of jurisdiction in civil matters, accordingly, may be subject to public international law constraints, as the concerns surrounding transnational tort litigation involving corporations suggest and as the ECtHR seems to have clarified in the Naït-Liman jurisprudence, by requiring that the resort to the forum necessitatis jurisdiction be required or permitted either by customary international law or by international treaties.
The chapter examines the avenues for redress with reference to human rights violations performed by multinational corporations. Specifically, it reviews the practice of EU Member States, discusses the conceptual and normative foundations of domestic residual jurisdiction under Article 6 of the Brussels I bis Regulation, and assesses its potential for the protection of the victims of such violations.
This chapter reflects on the European Court of Human Rights’ (ECtHR) Grand Chamber judgment in Naït-Liman v Switzerland. Holding that Switzerland did not infringe Mr Naït-Liman’s right of access to a court under Article 6 of the Convention, the ECtHR 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. This notwithstanding, the Grand Chamber arguably gave much better consideration than the Chamber to the Court’s role in the development of international law, stating in rather clear terms that the exercise of universal civil jurisdiction is lawful – and, indeed, desirable – from the perspective of the European Convention of Human Rights.
Universal civil jurisdiction can be resorted to in the context of international crimes litigation. Two main issues are discussed: whether universal civil jurisdiction is an appropriate means for ensuring reparation for harm caused by the commission of international crimes, and the way in which the relationship between universal civil jurisdiction and reparation for international crimes may be framed in legal terms. It is maintained that universal civil jurisdiction offers only a very partial contribution to the reparation of international crimes. The duty to provide reparation for international crimes has a broader scope than tort litigation premised on universal civil jurisdiction itself and may be complied with via several alternative avenues, such as transitional justice mechanisms or collective reparation, or even via criminal prosecutions.