Thursday, June 15, 2006

A look at torts ...

During this strangely extended lacuna between interesting criminal cases around the world, we have a moment to glance at yesterday’s decision of the House of Lords in Jones v Saudi Arabia [2006] UKHL 26 (14 June 2006).

This case concerns the civil jurisdiction of domestic courts to adjudicate on claims in tort for damages for torture inflicted in another country by officials of that foreign country. In contrast to the universal criminal jurisdiction provided for by the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (the "Torture Convention"), there is no corresponding universal civil jurisdiction. The claimants in Jones sought to establish that the State Immunity Act 1978[UK] should be interpreted, contrary to its ordinary and natural meaning, so as to permit refusal of immunity in respect of torture claims, because such an interpretation was required by s 3 of the Human Rights Act 1998[UK] to give effect to the Art 6 of the ECHR right of access to courts.

That claim and argument was rejected unanimously. State immunity is a procedural matter determining jurisdiction, and does not have substantive content. There is no international consensus recognising universal civil jurisdiction, and there is no such exception in the UN Immunity Convention 2004. And, there is no evidence that States have recognised an international law obligation to exercise universal jurisdiction over alleged breaches of peremptory norms of international law. Therefore, the (assumed) restriction on access to the domestic courts was directed at a legitimate objective and was not disproportionate, and the interpretation sought by the claimants could not prevail.

See also, blog entry for 17 March 2006.

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