At the time this Article was written, delegations from forty-five countries were in the process of drafting the Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters ("the Hague Convention") under the auspices of the Hague Conference on Private International Law. [Since the writing of this Article, the drafters significantly scaled back the project, which now addresses only commercial disputes. Prior to this change of emphasis, drafters adopted draft text similar to that advocated in this Article.] The Hague Convention sought to establish a foundation for a worldwide regime for the free enforcement of civil judgments in exchange for the rigid regulation of assertions of personal jurisdiction. Accordingly, the proposed Hague Convention would have obliged signatories to prohibit the exercise of certain bases of personal jurisdiction and would have required the enforcement of only those judgments obtained through the application of a mandatory basis of jurisdiction. Other bases of jurisdiction were to be allowed, but the enforcement of any resultant judgment would have been discretionary.
The deliberations raised high stakes for parties engaged in litigation seeking to enforce international human rights, international humanitarian law, and international criminal law through civil actions in domestic courts. Civil actions initiated by victims or the families of victims of human rights violations likely fell under the draft Hague Convention's proposed definition of "civil and commercial matters." This would include suits brought under the Alien Tort Statute (ATS), the Torture Victim Protection Act (TVPA), the Anti-Terrorism Act (ATA), and the Foreign Sovereign Immunity Act (FSIA) in the United States. Similarly, the ability of victims of human rights abuses to bring claims for reparations in connection with criminal trials (i.e., parties civiles), as is allowed in many civil law jurisdictions, would also have been affected by the Hague Convention's proposed provisions. If such criminal cases involved an extraterritorial assertion of jurisdiction, companion civil suits may have been prohibited by the proposed Hague Convention's jurisdictional regime.
This Article addresses the impact the proposed Hague Convention might have had on these lawsuits. The Article begins with a brief survey of the way in which such litigation proceeds in domestic courts in both civil and common law jurisdictions. It examines the exercise of jurisdiction in these suits with reference to exemplary cases. It then recounts the genesis of the proposed Hague Convention and the impact it could have had on civil human rights cases if the drafters had not included language exempting such litigation from the proposed jurisdictional regime. The Article demonstrates that if the Hague Convention were adopted without a special provision protecting human rights litigation, it could severely hamper one of the most innovative developments in international law and unduly interfere with present and future efforts by states to comply with duties under international treaty and customary law. The Article argues that the Hague Convention must not foreclose civil cases based on human rights violations, particularly given the importance to victims of civil redress in domestic courts and the paucity of legal institutions in which victims of human rights abuses can seek civil redress from responsible individuals. Finally, the Article suggests adjustments to the draft then under consideration and presents a proposal for interpretation that will disarm these threats, leave intact existing avenues for the civil redress of human rights violations, and enhance the enforcement of international norms in national courts.
42 Harv. Int'l. L. J. 141