Research On The Universal Jurisdiction In International Civil Litigation

The universal jurisdiction in international law originated in the criminal field and has recently extended to the civil field.Civil universal jurisdiction allows the country to exercise jurisdiction over cases not related to the country under domestic law.Its establishment has an important value basis which is to pursue substantial justice and strengthen protection of human rights.The United States is the main advocate of civil universal jurisdiction.Courts exercise universal jurisdiction under Alien Tort Statute.Alien Tort Statute did not have practical effect at the beginning of its formulation.It began to get public attention Since Filartiga,and then caused more discussion in Sosa.Since then,a large number of foreigners have filed lawsuits under Alien Tort Statute against violations outside the United States.Since Aliens Tort Statute only grants foreigners the right to litigation,in 1992 the Torture Victims Protection Act was passed.This law affirms and supplements Aliens Tort Statute.It adds American citizens' right to litigation and regulates torture and extrajudicial killings as causes of action.By examining Alien Tort Statute,it is not difficult to find that the civil universal jurisdiction advocated by the United States also requires certain conditions.When bringing an action under Alien Tort Statute,firstly it is necessary to satisfy personal jurisdiction and subject matter jurisdiction.Personal jurisdiction advocated by the United States is broader than other countries.Courts can serve defendants to establish jurisdiction or cases have minimal contact with the United States.Subject matter jurisdiction requires that tort committed in violation of the law of nations or a treaty of the United States.Secondly,the plaintiff must be a foreigner.The defendant is national actor or private actor in practice.The former will be subject to sovereign immunity,and the latter has further expanded in practice,such as multinational corporations can also as defendants.When the defendant is a national actor,how to balance the relationship between civil universal jurisdiction and state immunity,different courts have great controversy on this issue.In Canadian and Italian courts,victims use jus cogens to request courts to exercise universal jurisdiction,but only Italian court supported civil universal jurisdiction over the state and sentenced Germany for compensation.Later,Germany filed a suit against Italy in International Court of Justice.The judgment of the International Court of Justice also tended to determine that jus cogens cannot be an exception to state immunity and thus cannot be used as a basis of exercising universal jurisdiction.In European countries,because of the court's refusal to govern,the victims also brought actions in the European Court of Human Rights on the basis of the violation of the right of access to court in ECHR.However,the judgment of the European Court of Human Rights indicated that it was cautious about the issue of state immunity and did not advocate exercising universal jurisdiction over the state.Therefore,on the whole,the attitude of the international community is more conservative,and the rule of sovereign immunity is an obstacle to the development of civil universal jurisdiction.In the formulation process of the Convention on Civil and Commercial Jurisdiction and Foreign Judgment(Draft),China has also put forward its own proposals for civil universal jurisdiction,and has been listed as the second alternative.China holds that the precondition to exercise civil universal jurisdiction is having right to exercise criminal universal jurisdiction.Cases concerning civil universal jurisdiction often involve state infringement,and China insists on absolute immunity on the issue of state infringement.Because it cannot exercise criminal universal jurisdiction over the state,so it is impossible to exercise civil universal jurisdiction over this issue.So it can be seen that presently Chinese overall attitude toward civil universal jurisdiction is not in favor of it.Although China does not advocate civil universal jurisdiction,it will inevitably be involved in foreign lawsuits.Presently,there are already human rights lawsuits against the Chinese government and officials,the Bank of China,and other multinational corporations.Therefore,it is necessary for china to make a positive response.Firstly,we should pay attention to the legality of our actions to avoid infringement lawsuits.Secondly,we should improve the existing relief system so that the factors of jurisdiction are no longer irrationally become obstacles to infringement litigation,thus providing victims with adequate relief.Lastly,when the case belongs to the jurisdiction of another country,we can use civil universal jurisdiction as a consideration for the exercise of supplementary jurisdiction.When other country is unable or unwilling to exercise its jurisdiction,and the tort violates the jus cogens,we can exercise jurisdiction to demand compensation for human rights violation based on humanitarian consideration.