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Giorgio Gaja
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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 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 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.

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