Harvard International Law Journal

The oldest and most-cited student-edited journal of international law, the Harvard International Law Journal covers a wide variety of topics in public and private international law.

Conflicts of Law and Jurisdiction

The Role of the European Convention on Human Rights in the Wake of Kiobel

Filed Under: Student Features

Kiobel v. Royal Dutch Petroleum Co. has generated concerns that a governance gap will emerge for corporations that propagate human rights violations abroad. In Kiobel, the U.S. Supreme Court barred most “case[s] seeking relief for violations of the law of nations occurring outside the United States.”[1] The U.S. had previously offered victims straightforward access to justice in its courts.[2]  As American courts grow less open to extraterritorial claims, recognition of the global context gains importance. The current climate presents opportunities for other judicial systems to step forward. Specifically, Kiobel has provided the European Court of Human Rights with the occasion to interpret the European Convention on Human Rights [3] to require the right to an extraterritorial forum and counterbalance the shift in the U.S. that Kiobel represents.

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[1] Kiobel v Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1669 (2013).

[2] See 28 U.S.C. § 1350 (amended 2012) and its interpretation in, for example, Abdullahi v. Pfizer, Inc., 562 F.3d 163, 172–74 (2d Cir. 2009); Bodner v. Banque Paribas, 114 F. Supp. 2d 117, 128 (E.D.N.Y. 2000).

[3] European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221, [hereinafter ECHR] (entered into force Sept. 3, 1953) (as amended by Protocols Nos. 11 and 14, which entered into force on Nov. 1, 1998 and June 1, 2010, respectively).

 

The Piracy Analogy: Modern Universal Jurisdiction’s Hollow Foundation

Filed Under: Print Archives

In recent years, courts around the world have relied on universal jurisdiction with increasing frequency to justify proceedings against alleged perpetrators of human rights offenses in foreign countries. The doctrine of universal jurisdiction holds that a nation can prosecute offenses to which it has no connection at all—the jurisdiction is based solely on the extraordinary heinousness of the alleged conduct. According to the doctrine, any nation can prosecute universal offenses, even over the objection of the defendants’ and victims’ home states. Examples of universal jurisdiction include Belgium’s indictment of Israeli Prime Minister Ariel Sharon for alleged responsibility for war crimes committed by Christian Arabs against Muslim Arabs in Lebanon and the conviction by German and Swiss courts of Serbian officials who committed war crimes against Bosnian Muslims.

Universal jurisdiction can have dangerous consequences, especially in the absence of generally accepted limitations on its scope. Unlike all other forms of international jurisdiction, the universal kind is not premised on notions of sovereignty or state consent. Rather, it is intended to override them. An assertion of universal jurisdiction can create conflict and possibly hostilities among countries because it can be construed as an encroachment on the sovereign authority of the country that has traditional jurisdiction over the offense. For hundreds of years, universal jurisdiction only applied to the crime of piracy. In recent decades, however, universal jurisdiction has been asserted over many human rights offenses. The expansion in universal jurisdiction’s scope has been accompanied by an increase in states’ willingness to use it.