Browsing by Author "Berg, Victoria"

The theme of this thesis relates to the concepts of jurisdiction and access to justice under international law. Jurisdiction is a question of a State’s right to regulate, while the individual right of access to justice essentially is a question of a State’s obligation to provide access to its courts. But when a State’s right of jurisdiction conflicts with the individual right of access to court, which one of the two will prevail over the other? Are States under an international obligation to exercise their jurisdiction in certain situations? The theme reflects in the subject of the thesis, which is human rights litigation against transnational corporations in the courts of the corporations’ home States. In this type of litigation, where the human rights abuse usually has taken place abroad, the preliminary question of the courts’ jurisdiction has been the main legal issue, as the domestic rules governing jurisdiction have arguably conflicted with the victims’ right of access to justice. The research question in this thesis is whether the human right of access to justice creates a corresponding obligation on States under international law to exercise jurisdiction when an individual has brought a tort action against a corporation domiciled in that State for alleged human rights abuse committed in another State’s territory. First, the thesis examines the concept of jurisdiction and its theoretical foundations in international law. From this, the preliminary conclusion is that under customary international law, it is generally accepted that courts in the State of a defendant corporation’s domicile have lawful jurisdiction over civil actions relating to the corporation’s foreign activities but are under no obligation to exercise their jurisdiction. Second, the thesis reviews State practice on human rights litigation against corporations in the form of European Union law, domestic legislation, and national court decisions. The conclusion is that practically all States in both civil and common law systems allow and exercise domicile-based tort jurisdiction over non-territorial acts, and such jurisdiction is even obligatory for courts under the Brussels I Regulation in the EU. The thesis also suggests that domicile-based jurisdiction has increasingly been claimed by domestic courts in cases against corporations for human rights abusing practices abroad, and foreign protest has been practically non-existent. However, the common law concept of forum non conveniens – a general discretionary power of a court to decline jurisdiction on the basis that a foreign court is a more appropriate forum for the determination of the dispute – has been used by courts in transnational human rights litigation against corporations in order to decline jurisdiction. The thesis concludes that this practice in home State courts has sometimes led to a denial of justice for victims in situations when no alternative forum has been available in the host State. Based on the review of State practice, the thesis highlights three aspects which have been central to the national courts’ analysis: (i) the connecting link between the case and the forum State, (ii) the underlying human rights violation of the dispute, and (iii) the existence of another available forum. Third, the thesis examines the right of access to justice by reviewing the customary law of State responsibility for denial of justice in the context of diplomatic protection, relevant international and regional human rights treaties, and the case law of the European Court of Human Rights on the right of access to court under Article 6 of the European Convention on Human Rights. Based on this analysis, the thesis suggests that an obligation to exercise civil jurisdiction pursuant to the right of access to court exists. Further, the thesis suggests that the condition for such an obligation is the existence of a ground for jurisdiction in the form of a strong connecting link between the case and the forum State. Depending on the strength of the connection, the lack of access to an alternative forum arguably affects the determination of whether the lack of access to court is proportionate in the particular circumstances of each case. However, it is not possible to draw any conclusion from the human rights law jurisprudence as to whether domicile of the defendant as a connecting factor in civil disputes is sufficient to trigger the human rights obligation to provide access to court. Turning back to the review on State practice on the issue, the thesis concludes by suggesting that the domicile of the defendant is a universally approved basis for jurisdiction in transnational tort cases, indicating at least a strong presumption in favour of an obligation on States to exercise that jurisdiction, especially when the plaintiff has no access to an alternative forum.