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THE ALIEN TORT STATUTE AFTER KIOBEL: THE POSSIBILITY FOR UNLAWFUL ASSERTIONS OF UNIVERSAL CIVIL JURISDICITON STILL REMAINS

Published online by Cambridge University Press:  17 July 2014

PAUL DAVID MORA
PAUL DAVID MORA*
Affiliation:
Visiting Researcher, Faculty of Law, National University of Singapore, [email protected].
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Abstract

The jurisdictional reach of causes of action brought under the Alien Tort Statute 17891 (ATS) was considered by the Supreme Court of the United States in Kiobel v Royal Dutch Petroleum.2 The claimants in this decision sought to bring an action before a US District Court asserting universal civil jurisdiction over the conduct of foreign corporations performed against non-US nationals in the territory of a foreign State. Although the Supreme Court dismissed the particular claim on the basis of a domestic canon of statutory interpretation (the presumption against extraterritoriality), the narrowness of its reasoning left open the possibility for actions to continue being brought under the ATS which assert universal civil jurisdiction over the harm caused by individuals rather than corporations. Moreover, this position was specifically endorsed by a four-member minority of the Supreme Court in the Concurring Opinion of Justice Breyer. This paper argues that the reasoning of Justice Breyer is unconvincing and goes on to suggest that assertions of civil jurisdiction made under the universal principle are unlawful in international law as they fail to find a legal basis in either customary or conventional international law.

Keywords

Alien Tort Statutedamages for human rightsinternational lawState sovereigntyuniversal civil jurisdiction
Type
Articles
Information
International & Comparative Law Quarterly , Volume 63 , Issue 3 , July 2014 , pp. 699 - 719
Copyright
Copyright © British Institute of International and Comparative Law 2014 

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References

1 28 USC section 1350.

2 Kiobel v Royal Dutch Petroleum Co and Shell Transport and Trading Company Plc, 133 S. Ct. 1659 (2013). For a comment on the Supreme Court's decision see Wuerth, I, ‘Kiobel v Royal Dutch Petroleum Co.: The Supreme Court and the Alien Tort Statute’ 107(3) AJIL 601 (2013)Google Scholar; Sanger, A, ‘Transnational Human Rights Cases? Not in Our Backyard!’ (2013) 72(3) CLJ 487Google Scholar; and Anderson, K, ‘Kiobel v Royal Dutch Petroleum: The Alien Tort Statute's Jurisdictional Universalism in Retreat’ 12 Cato Supreme Court Review 149 (2012–13)Google Scholar. See also the various articles in ‘Agora: Reflections on Kiobel’ 107(4) AJIL 829 (2013) 829–63; and ‘Extraterritoriality post-Kiobel: International and Comparative Legal Perspectives’ 28 MdJIntlL (2013) 1–274.

3 630 F 2d 876, 878 (2d Cir. 1980).

4 ibid at 880. The Supreme Court in Sosa v Alvarez-Machain, 542 U.S. 692 (2004), held that only ‘specific, universal, and obligatory’ violations of international law norms were actionable under the ATS (at 732).

5 577 F Supp. 860, 862–863 (1984). The District Court also applied the lex fori when awarding remedies (at 863–867).

6 Jennings, R and Watts, A (eds), Oppenheim's International Law (9th edn, Longman 1992) 456Google Scholar.

7 See eg Mann, FA, ‘The Doctrine of Jurisdiction in International Law’ (1964) 111 Hague Recueil 1, 13Google Scholar; Bowett, DW, ‘Jurisdiction: Changing Patterns of Authority over Activities and Resources’ (1982) 53 BYIL 1Google Scholar, 1; Brownlie, I, Principles of Public International Law (7th edn, OUP 2008) 299Google Scholar; and O'Keefe, R, ‘Universal Jurisdiction: Clarifying the Basic Concept’ (2004) 2 JICJ 735Google Scholar, 736. See also Hartford Fire Insurance Co. v California, 509 U.S. 764, 813 (1993).

8 Maier, H, Jurisdictional Rules in Customary International Law in Meessen, KM (eds), Extraterritorial Jurisdiction in Theory and Practice (Kluwer Law International 1996) 78Google Scholar.

9 It is worth noting that it is not the natural or legal persons themselves which are being directly regulated by the act of prescription, but the conduct and consequences of events which they perform.

10 See the discussion at notes 86–93.

11 See O'Keefe (n 7) 741–4. An important exception to this is when a State applies its laws retroactively and makes the relevant conduct unlawful after it has been committed.

12 ibid 741.

13 Kiobel (n 2) at 1669.

14 Kiobel v Royal Dutch Petroleum Co., 456 F.Supp.2d 457 (S.D.N.Y. 2006). Personal jurisdiction, sometimes referred to as in personam jurisdiction, is concerned with the authority of a court over the parties (natural or legal) to the proceedings before it. Personal jurisdiction is a form of enforcement jurisdiction.

15 Kiobel v Royal Dutch Petroleum Co., 621 F. 3d 111 (2010). Circuit Judge Level concurred with the judgment to dismiss the claim, but on the grounds that the victims had failed to plead specific facts creating a reasonable inference that the corporations had acted with a purpose of bringing about the alleged violations. His concurring judgment disagreed with the reasoning and conclusions drawn by the majority.

16 The Supreme Court also granted certiorari to consider ‘[w]hether the issue of corporate civil tort liability under the [ATS] is a merits question, or an issue of subject matter jurisdiction’.

17 For recent decisions concerning corporate liability under the ATS, see Presbyterian Church of Sudan v Talisman Energy Inc., 582 F.3d 244 (2d Cir. 2009); Doe v Exxon Mobil, 654 F.3d 11 (DC Cir. 2011); and Flomo v Firestone, 643 F.3d 1013 (7th Cir. 2011). The impact of these decisions on the potential liability of corporations is considered in this issue by U Kohl, ‘Corporate Human Rights Accountability: The Objections of Western Governments to the Alien Tort Statute’.

18 Kiobel (n 2) at 1664. The Supreme Court declined to consider the Charming Betsy canon of statutory interpretation which provides that ‘an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains’: Murray v Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804).

19 Morrison v National Australia Bank Ltd, 130 S. Ct. 2869, 2878 (2010).

20 F. Hoffmann-La Roche Ltd v Empagran S. A., 542 U.S. 155, 165 (2004).

21 EEOC v Arabian American Oil Co., 499 U.S. 244, 248 (1991).

22 Morrison (n 19) at 2883.

23 Kiobel (n 2) at 1665–1669.

24 ibid at 1669.

25 ibid.

26 Breyer J criticized the majority's reliance on the presumption of extraterritorially to dismiss the claim (ibid at 1672–1673).

27 ibid at 1674.

28 ibid.

29 ibid at 1677–1678.

30 ibid at 1669.

31 ibid at 1669.

32 ibid at 1673.

33 cf JG Ku, ‘Kiobel and the Surprising Death of Universal Jurisdiction under the Alien Tort Statute’ (2013) 107(4) AJIL 835.

34 The presence of the individual defendant in the United States at the time when proceedings are initiated would allow for the service of process so as to establish personal jurisdiction. As already noted, personal jurisdiction is part of enforcement jurisdiction and not prescriptive jurisdiction. On a separate point, the US Supreme Court recently held in Daimler AG v Bauman, 134 S. Ct. 746 (2014), that a court could not exercise personal jurisdiction over a foreign corporation based solely on the fact that an indirect corporate subsidiary performed services on its behalf in the United States. The underlying issue concerned proceedings being brought by several Argentinian nationals under, inter alia, the ATS in a US District Court against a German corporation for alleged human rights violations performed by another subsidiary of the defendant in Argentina.

35 Kiobel (n 2) at 1669.

36 ibid at 1674.

37 cf Ku (n 33) 838. Wuerth (n 2) has noted that ‘Justice Breyer might be best understood as endorsing universal civil jurisdiction with a kind of subsidiary requirement, pursuant to which there must be some connection between the forum state and defendant, such as the defendant's residence there’ (619). For the view that this passage conflates prescriptive and enforcement jurisdiction see, generally, O'Keefe (n 7).

38 Kiobel (n 2) at 1675.

39 25 F. 3d 1467 (CA9 1994). The facts of the case concerned Philippine nationals bringing a civil action under the ATS against the former president of the Philippines for acts of torture and summary execution committed in the Philippines. The defendant was served with process in Hawaii where he had fled to from the Philippines.

40 Sosa (n 4) at 732, noted by Breyer J, Kiobel (n 2) at 1675.

41 The Case of the S.S. ‘Lotus’ (France v Turkey), Judgment of 7 September 1927, Series A, No 10, at 19.

42 cf the early dictum in the Lotus case, ibid, at 19, which suggested that States are presumed to have an unlimited competence to prescribe their laws over extraterritorial conduct and events, subject only to express prohibitions imposed by norms of international law. This framework of extraterritorial prescriptive jurisdiction has more recently been described by the Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal in Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), Judgment of 14 February 2002, ICJ Reports 2002, 3, as ‘represent[ing] the high water mark of laissez-faire in international relations’ (at [51]). More significantly, this framework of extraterritorial prescriptive jurisdiction has since been rejected by State practice. See, for example, the decision of the South African Constitutional Court in Kaunda and Others v President of the Republic of South Africa, 2004 (10) BCLR 1009, at [38]–[42]; and the Brief of the Governments of the Kingdom of the Netherlands and the United Kingdom of Great Britain and Northern Ireland as Amici Curiae in Support of Neither Party, Kiobel v Royal Dutch Petroleum, No 10-1491 (13 June 2012) (Supplemental Brief) at 11. See, however, The Queen v Ahmad [2011] NTSC 71, at [48].

43 Mann (n 7) 49. This formulation has general application and applies in both a criminal and civil context: Mann, FA, ‘The Doctrine of Jurisdiction in International Law Revisited after Twenty Years’ (1984) 186 Hague Recueil 19Google Scholar, 29.

44 See eg Brief of the Governments of the Netherlands and the United Kingdom (n 42) 33–4; Brief of the Federal Republic of Germany as Amicus Curiae in Support of Respondents, Kiobel v Royal Dutch Petroleum, No 10-1491 (2 February 2012) at 14; and Supplemental Brief for the United States as Amicus Curiae in Partial Support of Affirmance in Kiobel v Royal Dutch Petroleum, No 10-1491 (13 June 2012) at 22–23. The US Supreme Court appeared to endorse this requirement in Sosa, (n 4) at 733, n 22, as did the Concurring Opinion of Breyer J in Kiobel (n 2) 1674 and 1677.

45 The Lotus case (n 41) at 18 and 23; Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal in the Arrest Warrant case (n 42) at [54].

46 See eg Attorney General of the Government of Israel v Eichmann (1961) 36 ILR 5.

47 The uncertainty that remains over which crimes are subject to the universal principle is beyond the discussion of this paper.

48 For an early review of State practice on the universal principle, see the Harvard Research on International Law, ‘Jurisdiction with Respect to Crime’ (1935) 29 AJIL Supp 435, 563–92. For a more recent survey see UN General Assembly, Report of the Secretary-General, The Scope and Application of the Principle of Universal Jurisdiction, UN Doc A/66/93 (20 June 2011).

49 cf Ryngaert, C, ‘Universal Tort Jurisdiction over Gross Human Rights Violations’ (2007) 38 NYIL 3Google Scholar, 28–32 and 52, advocating for the lawfulness of universal civil jurisdiction on the basis that it is not prohibited by custom. As mentioned already, this framework of jurisdiction has been rejected by international law. Such a point has not gone unnoticed by Ryngaert himself when writing elsewhere: Ryngaert, C, Jurisdiction in International Law (OUP 2008) 21Google Scholar and 26–7.

50 Kiobel (n 2) at 1677.

51 ibid at 1675. See, also, the Concurring Opinion of Breyer J in Sosa (n 4) at 762–763, where he held that assertions of universal civil jurisdiction respect international comity and are in accordance with international law.

52 ibid at 1676. See also Donovan, D and Roberts, A, ‘The Emerging Recognition of Universal Civil Jurisdiction’ (2006) 100(1) AJIL 142Google Scholar, 154; and Amnesty International, Universal Jurisdiction: The Scope of Universal Civil Jurisdiction (2007) AI Index: IOR 53/008/2007, 4–10.

53 Kiobel (n 2) at 1673.

54 ibid at 1677.

55 Section 404.

56 ibid, cmt b.

57 Kiobel (n 2) at 1677.

58 Similarly, the US Court of Appeals for the Second Circuit in Kadic v Karadžić, 70 F.3d 232, 240 (2d Cir. 1995) cited section 404 cmt b as authority for the proposition that ‘international law also permits states to establish appropriate civil remedies … such as the tort actions authorized by the Alien Tort Act’ (emphasis added).

59 Kiobel (n 2) at 1673.

60 See the discussion at notes 36–9.

61 The US Government had previously taken the position in Sosa that the ATS did not apply extraterritorially: Brief for the United States as Respondent Supporting the Petitioner in Sosa v Alvarez-Machain, No 03-339 (January 2004) at 46–49. This view was, however, based on the presumption against extraterritoriality rather than international law considerations.

62 Supplemental Brief for the United States as Amicus Curiae (n 42) at 13.

63 ibid at 14, fn 3. Distinguishing this case from Filártiga, the US Government went on to suggest that the Supreme Court ‘should not create a cause of action that challenges the actions of a foreign sovereign in its own territory, where the defendant is a foreign corporation of a third country that allegedly aided and abetted the foreign sovereign's conduct’ (at 21).

64 28 USC section 1350.

65 Senate Report, No 249, 102d Cong, 1st Sess. (1991).

66 Brief for the Government of the Argentine Republic as Amicus Curiae in Support of the Petitioners, Kiobel v Royal Dutch Petroleum, No 10-1491 (13 June 2012) at 6–7.

67 ibid 7–12.

68 ibid 13. See, similarly, Colangelo, AJ, ‘Kiobel: Muddling the Distinction between Prescriptive and Adjudicative Jurisdiction’ 28 MdJIntlL 65 (2013)Google Scholar.

69 See eg UN General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, Resolution 60/147, 21 March 2006, UN Doc/RES/60/147 (2006).

70 See Fox, H, The Law of State Immunity (2nd edn, OUP 2008) 86Google Scholar; and Gattini, A, ‘The Dispute on Jurisdictional Immunities of the State before the ICJ: Is the Time Ripe for a Change of the Law?’ (2011) 24 LJIL 173Google Scholar, 180.

71 See the Separate Opinion of Koroma J in Case Concerning Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), Judgment of 3 February 2012 at [9].

72 See (n 5) at 863. The remedies awarded were also governed by the common law (at 863–867).

73 Sosa (n 4) at 724.

74 Kiobel (n 2) at 1666. See, similarly, the Supplemental Brief for the United States as Amicus Curiae (n 42) at 2.

75 Brief of the European Commission on Behalf of the European Union as Amicus Curiae in Support of Neither Party, Kiobel v Royal Dutch Petroleum, No 10-1491 (13 June 2012) 17.

76 Moreover, and considered in more detail below, both the joint amicus curiae brief submitted to the Supreme Court by the Netherlands and the United Kingdom, as well as the amicus curiae brief submitted by Germany, took a different position to that of the EC with respect to the lawfulness of universal civil jurisdiction. See the discussion at notes 97–105.

77 See (n 75) 2, citing art 21(2)(b) of the Treaty of the European Union. It was further identified that the EU had an interest in ensuring that EU-based natural and legal persons were not at risk of being subjected to the laws which did not respect the limits imposed by international law (at 2–3).

78 cf Ryngaert, ‘Universal Tort Jurisdiction over Gross Human Rights Violations’ (2007) 38 NYIL 3 (n 49) 55–6, commenting on the Brief of the European Commission on Behalf of the European Union as Amicus Curiae in Support of Neither Party, Sosa v Alvarez-Machain, No 03-339 (23 January 2004). International organizations can contribute to the formation of customary rules when providing a forum in which member States of the organization engage in a practice concerning matters of international law. It is, however, the activities of the individual member States themselves, rather than those of the international organization, which provide the necessary practice. An illustration of this point is provided by the decision of the Assembly of the African Union on the Abuse of the Principle of Universal Jurisdiction, which recognized universal (criminal) jurisdiction as a principle of international law (Assembly/AU/Dec.199(XI)). As the Assembly is composed of heads of State and government, the decision thus constitutes evidence of State practice on this matter.

79 See (n 75) 24 (emphasis in the original).

80 The supporting reference made by the EC to A Nuyts, Study on Residual Jurisdiction (Review of the Member States' Rules concerning the ‘Residual Jurisdiction’ of their courts in Civil and Commercial Matters pursuant to the Brussels I and II Regulations), General Report (3 September 2007), chs 16 and 21, was concerned with civil courts exercising jurisdiction on a “forum of necessity” basis. As discussed in more detail below, this is an issue of enforcement jurisdiction concerned with when a court may hear a claim, rather than prescriptive jurisdiction.

81 Rechtbank's Gravenhage, Case No 400882/HA ZA 11-2252 (21 March 2012).

82 In private international law, jurisdiction is concerned with whether a court is a competent forum to determine a case involving a foreign element. If found to be a competent forum, it is then considered which law should be applied to determine the case by applying the relevant choice of law rule.

83 Art 9(c) of the Dutch Code of Civil Procedure.

84 See (n 81) at [2.3]. In this regard, it has been noted by Akehurst that: ‘[i]n civil law[,] legislative jurisdiction and judicial jurisdiction do not necessarily coincide. A court may have jurisdiction and yet apply foreign law’ (Akehurst, M, ‘Jurisdiction in International Law’ (1972–73) 46 BYIL 145Google Scholar, 179).

85 For this reason, the Netherlands claimed in its joint amicus curiae brief (n 42) that this decision ‘is consistent with international law limits on jurisdiction’ (at 22–23).

86 Council Regulation (EC) No 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, OJ 2001 L12/1.

87 Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (2007), 2007 OJ L339/3.

88 Arts 33(1) and 38(1).

89 See (n 75) at 25.

90 O'Keefe (n 7) 744 and 750.

91 Arts 36 of the Brussels I Regulation and the Lugano Convention specifically provide that under no circumstances may an enforcing court review the substantive basis of a foreign judgment.

92 Mann (n 43) 34 (emphasis in original).

93 A further difficulty with the EC's suggestion that the requirement to recognize and enforce judgments under the harmonized rules have created a practice on universal civil jurisdiction is that transnational human rights claims brought against States and their officials fall outside the ratione materiae scope of the Brussels I Regulation and Lugano Convention. In Lechouritou v Federal Republic of Germany, C-292/05, [2007] ECR I-1519, the European Court of Justice held that a claim for damages brought in a Greek court against Germany in respect of massacres committed by the occupying forces during the Second World War were not ‘civil matters’ within the meaning of art 1 of the Regulation. Disputes resulting from the exercise of public powers were held to be beyond the scope of the legal rules regulating private individuals contained in the Regulation.

94 Akehurst (n 84) 176.

95 Cassese, A, ‘When May Senior State Officials Be Tried for International Crimes?’ (2002) 13 EJIL 853Google Scholar, 859–60.

96 Supplemental Brief for Respondents, Kiobel v Royal Dutch Petroleum, No. 10-1491 (1 August 2012) at 5.

97 Supplemental Brief of the Netherlands and United Kingdom (n 42), at 6. The amicus curiae brief mistakenly read the jurisdictional assertion in Filártiga as being based on active personality rather than universality (at 15). At the time that the impugned acts were committed for which damages were awarded by the District Court, the defendant had no links of nationality (or residency) with the United States. This misreading of the decision was unfortunate as it led to the Governments suggesting that it should not be overruled by the Supreme Court (at 16). Breyer J subsequently stated in his Concurring Opinion that ‘the United Kingdom and the Netherlands, while not authorizing such damages actions themselves, tell us that they would have no objection to the exercise of American jurisdiction in cases such as Filartiga’ (at 1676).

98 ibid.

99 ibid 17.

100 cf Reydams, L, Universal Jurisdiction: International and Municipal Legal Perspectives (OUP 2003) 3Google Scholar; Van Schaack, B, ‘Justice without Borders: Universal Civil Jurisdiction’ 99 ASIL 120 (2005) 120Google Scholar; Donovan and Roberts (n 52) 153–4; and Ryngaert, ‘Universal Tort Jurisdiction over Gross Human Rights Violations’ (2007) 38 NYIL 3 (n 49) 25–7.

101 See eg the recent decision of the International Court of Justice (ICJ) in Jurisdictional Immunities of the State case, at [81]–[91]. For an illustration that the international rules applicable in one field of law do not automatically apply in another, see Jones v Saudi Arabia [2006] UKHL 26, at [19] and [32], where the House of Lords referred to its earlier decision in R. v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3) [2000] 1 AC 147 to note that its findings on immunity ratione materiae in criminal proceedings for torture did not apply to civil proceedings concerning whether a State was entitled to plead immunity ratione materiae on behalf of its officials for similar acts.

102 See the comments of Lord Hunt, the (then) Parliamentary Under-Secretary of State for the Ministry of Justice, in respect of the Torture (Damages) (No. 2) Bill 2009: Hansard, 2008–09, vol 701, No 94 (16 May 2008) at col 1228. See also the Memorandum Submitted by the Ministry of Justice to the Joint Committee on Human Rights, Closing the Impunity Gap: UK Law on Genocide (and Related Crimes) and Redress for Torture Victims, Twenty-fourth Report of Session 2008–09, HL Paper 153, HC 533, at paras 20–21.

103 Jones v Saudi Arabia [2006] UKHL 26. n 101, at [27] and [34]. See also the comments made at [99].

104 Brief of the Federal Republic of Germany (n 42) 2. See also the comments made at 9 and 10.

105 ibid 1.

106 The protests have not only objected to exorbitant assertions of jurisdiction, but also to claims being brought against foreign corporations.

107 See (n 41) at [48].

108 Brief of the Governments of the Commonwealth of Australia, The Swiss Confederation and The United Kingdom of Great Britain and Northern Ireland as Amicus Curiae in Support of the Petitioner, Sosa v Alvarez-Machain, No 03-339 (23 Jan 2004). See also the decision of the New South Wales Court of Appeal in Zhang v Zemin [2010] NSWCA 255, at [120]–[121].

109 Brief of Amicus Curiae of the Government of Canada in Support of Dismissal of the Underlying Action, Presbyterian Church of Sudan v Talisman Energy Inc., 582 F.3d 244 (2d Cir. 2009); and Diplomatic Note UNGR0023 submitted to the US Department of State by the Government of Canada in connection with Presbyterian Church of Sudan v Talisman Energy (14 January 2005) (on file with author).

110 Brief of the Republic of El Salvador as Amicus Curiae in Support of Appellant, Chavez v Carranza, No 06-6234 (23 April 2008), at 4 and 12.

111 Letter from the Government of Indonesia submitted to the US Department of State in connection with DOE VIII v Exxon Mobil Corp. (15 July 2002) (on file with author). One of the defendants (PT Arun NGL) was a joint venture company mostly owned by the Indonesian State.

112 Declaration of Justice Minister Maduna, filed in the case of In re South African Apartheid Litigation, No 02 MDL 1499 (11 July 2003) (on file with author).

113 See (n 108).

114 For the view that the violation of customary norms of jus cogens do not create universal civil jurisdiction, see Mora, PD, ‘The Legality of Civil Jurisdiction over Torture under the Universal Principle’ [2009] 52 GYIL 367, 384–90Google Scholar. See, more recently, Brief of the Governments of the Netherlands and the United Kingdom (n 42) 16. cf Orakhelashvili, A, Peremptory Norms in International Law (OUP 2006) 307–10Google Scholar; and Parlett, K, ‘Universal Civil Jurisdiction for Torture’ (2007) 4 EHRLR 385Google Scholar, 399.

115 The United Nations Convention against Torture and Other Cruel Inhuman, or Degrading Treatment or Punishment, 10 December 1984. At the time of writing there are 155 States party to the Convention, including Nigeria and the United States.

116 General Comment No 3, Implementation of Article 14 by States Parties (2012), CAT/C/GC/3, at para 22.

117 ibid, at para 20.

118 ibid, at para 22.

119 International Law Association, Committee on International Human Rights Law and Practice, Final Report on the Impact of Findings of the United Nations Human Rights Treaty Bodies (2004) at paras 15–16.

120 General Comment No 1, Implementation of Article 3 of the Convention in the Context of Article 22 (1998), A/53/44, at para 9.

121 See Jones (n 101) at [57]. This comment was motivated by the Committee's recommendation that Canada provide compensation to all victims of torture following its decision in Bouzari v Islamic Republic of Iran [2004] OJ No 2800, where a civil action for torture was barred on the grounds of State immunity: CAT/C/CR/34/CAN (2005), para 5(f). More recently, the Committee against Torture made the same recommendation and suggested that Canada should also ‘consider amending the State Immunity Act to remove obstacles to redress for all victims of torture’: CAT/C/CAN/CO/6 (2012), para 15. This recommendation is, however, inconsistent with the position taken in its General Comment were it stated that ‘granting immunity in violation of international law, to any State or its agents … is in direct conflict with the obligation of providing redress to victims’: see (n 115) at para 42 (emphasis added). For the view that the grant of immunity in Bouzari was not in violation of international law see the recent decision of the ICJ in Jurisdictional Immunities of the State case. For an extensive comment on the correctness of this decision see Mora, PD, ‘Jurisdictional Immunities of the State for Serious Violations of International Human Rights Law or the Law of Armed Conflict’ (2012) 50 CYIL 243Google Scholar.

122 See Orakhelashvili (n 114) 310–16; Hall, CK, ‘The Duty of States Parties to the Convention against Torture to Provide Procedures Permitting Victims to Recover Reparations for Torture Committed Abroad’ (2007) 18 EJIL 921CrossRefGoogle Scholar; and Metcalf, K, ‘Reparations for Displaced Torture Victims’ 19 Cardozo JIntl&CompL (2011) 451Google Scholar, 461–8.

123 See further Mora (n 114) 371–80, and the arguments made therein. See also the recent practice to this effect of the United Kingdom Government in Jones and Others v The United Kingdom [2014] ECHR 32, at [178].

124 The Report of the Committee on Foreign Relations, Senate Exec Rep No 30, 101st Cong, 2d Sess. 1 (1990), II (3), Appendix A.

125 cf Parlett (n 114) 399.