Li v Zhou [2014] NSWCA 176 | Case summary

Li v Zhou [2014] NSWCA 176 | Case summary | Zoe

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HEADNOTE [This headnote is not to be read as part of the judgment] The applicants, being residents of Australia, commenced proceedings in the Supreme Court of NSW against a senior official of the People's Republic of China, who was alleged to have authorised acts of torture against them when they lived in China. They claimed they were tortured as Falun Gong practitioners. Section 9 of the Foreign States Immunities Act 1985 (Cth) ("the Act") confers a general immunity on foreign governments, including members of the executive government of the People's Republic of China. However, the Act provides an exception in s 10(2) where a foreign state has submitted to jurisdiction by agreement. A treaty is included in the definition of "agreement" in the Act and the applicants argued China had impliedly submitted to the jurisdiction of the court because it had signed the Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment ("the Torture Convention"), to which Australia also is a Party. Article 14.1 of the Torture Convention provides that a State Party "shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation". The applicants argued that Art 14 provided for universal civil jurisdiction, allowing them, as victims of torture, to commence a civil action against a perpetrator of torture in the domestic courts of any State Party. This interpretation was said to be supported by the absence in Art 14 of any territorial limitation and the presumption that a corresponding civil jurisdiction would exist alongside the criminal jurisdiction over a perpetrator of torture in another State provided in Art 5. The applicants' argument that jurisdiction was established was rejected at trial. The issue for determination was whether Art 14, properly interpreted, constituted an effective submission by China for the purposes of s 10(2). Article 31 of the Vienna Convention on the Law of Treaties ("The Vienna Convention") provides that the terms of a treaty are to be interpreted in good faith in accordance with their ordinary meaning, in their context and in light of the object and purpose of the treaty. The Court held (Basten JA, Bathurst CJ and Beazley P agreeing), dismissing the appeal:

Article 14 of the Torture Convention does not, on its proper interpretation in light of the principles in the Vienna Convention, satisfy the requirement in s 10(2) of submission to jurisdiction by agreement. The ordinary meaning of Art 14's terms - when read in light of the context of the Torture Convention and its object and purpose - do not lend support to the proposition that it provides for universal civil jurisdiction. The absence of any express territorial limitation is not decisive and Art 14 lacks the clarity of Art 5 in terms of how it would operate to support the interpretation that it provides for universal civil jurisdiction. Consideration of preparatory work to the Torture Convention and subsequent state practice regarding Art 14 at most provide weak support for the proposition of universal civil jurisdiction: [11], [38], [46], [64], [72], [78]. Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; 190 CLR 225; Morrison v Peacock [2002] HCA 44; 210 CLR 274 applied. Bouzari v Islamic Republic of Iran (2004) 71 OR (3d) 675; 243 DLR (4th) 406; Jones v Ministry of the Kingdom of Saudi Arabia [2007] 1 AC 270; Islamic Republic of Iran v Hashemi (2012) QCCA 1449; 354 DLR (4th) 385; Jones v United Kingdom [2014] ECHR 32 considered. R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No 3) [2000] 1 AC 147; Zhang v Zemin [2010] NSWCA 255; 79 NSWLR 513 referred to.

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Judgment 1BATHURST CJ: I have had the advantage of reading the judgment of Basten JA. I agree with the orders that his Honour proposes and with his reasons. 2BEAZLEY P: I agree with Basten JA. 3BASTEN JA: Each of the applicants seek to bring claims against a named official, who had held three separate senior positions within the government of the People's Republic of China, seeking damages for mistreatment said to constitute torture. The applicants are exponents of Falun Gong. It is said to be their adherence to that faith which led to their ill-treatment in China. 4The primary respondent has been properly served, but has taken no steps in the proceedings. The Commonwealth Attorney General was joined as a respondent to the proceedings in the Common Law Division and is the active respondent on the appeal. The Attorney contended that the primary respondent is immune from suit in the Supreme Court of New South Wales because he falls within the definition of a "foreign State" within, and thus has immunity under, the Foreign States Immunities Act 1985 (Cth): s 3(3). That submission was accepted by McCallum J in the Common Law Division, dismissing an application by the applicants for default judgment and further, on the application of the Attorney, dismissing the proceedings: Li v Zhou [2013] NSWSC 12; 272 FLR 239; 295 ALR 589. 5The applicants filed a timely notice of appeal, on the assumption that leave was not required. An affidavit filed by their solicitor referred to the nature of the personal injuries suffered, in a somewhat general fashion, and expressed an opinion that "the damages awarded to them would exceed the sum of $100,000." Not only was the affidavit inadequate in terms of the basis of the opinion, but separate opinions should have been expressed in respect of each applicant. No sufficient affidavit having been filed in accordance with the Uniform Civil Procedure Rules 2005 (NSW), r 51.22, the matter should be approached on the basis that each applicant requires leave to appeal. Nevertheless, there was no opposition to a grant of leave and the issues of law raised by the appeal warrant the considered opinion of the Court. It is convenient in order to dispose of the proceedings to approach the matter on the basis that leave has been sought and should be granted. 6This is not the first occasion on which Chinese nationals living in Australia have sought to bring civil proceedings for damages against Chinese officials said to be responsible for their arrest, detention and physical and mental persecution in China. Earlier proceedings were unsuccessful: Zhang v Zemin [2010] NSWCA 255; 79 NSWLR 513. Those proceedings turned on different issues to the issue sought to be raised in this case. In particular, they turned on the operation of s 9 of the Foreign States Immunities Act, which is in the following terms: 9 General immunity from jurisdiction Except as provided by or under this Act, a foreign State is immune from the jurisdiction of the courts of Australia in a proceeding. 7As appears from the judgment of Spigelman CJ on the appeal in that case, the finding of the trial judge (Latham J) that the Court had no jurisdiction was challenged on the following bases, namely: (a) that the defendants had not invoked the immunity - [19]; (b) that the defendants in the proceedings did not fall within the definition of "foreign State" on one of two bases: (i) because the definition did not apply to individuals at all - [53]; or (ii) the definition did not apply to those who had been members of the executive government, but no longer were - [79]; and (c) because the immunity conferred by s 9 did not extend to civil claims arising out of acts of torture - [114]. 8The principal argument in the present proceeding did not focus upon the scope of s 9 but rather on an exception provided under s 10, namely that the People's Republic of China had "submitted to the jurisdiction" of the Australian courts. This contention turned on the effect of accession and ratification by China of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("the Torture Convention"). This argument is essentially different from each of those rejected in the earlier proceedings and requires consideration of acts in international law which may constitute submission to jurisdiction of the court of another State, for the purposes of the Australian statute.

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Outline of issues 9The sole question for determination, therefore, is whether, by entering into the Torture Convention, China (and other countries) effectively submitted to the jurisdiction of Australian (and no doubt multifarious other national) courts. While that involves a conclusion as to the application of Australian statute law, the conclusion depends upon the significance of certain acts of a foreign government under international law: Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2007] 1 AC 270 ("Jones (2006)") at [1] (Lord Bingham of Cornhill). 10There may be other consequential issues which would need to be addressed if it were held that an exception to foreign State immunity applied in the present case. For example, the claims covered a range of conduct, some of which might constitute torture, but other parts not. Were China deemed to have submitted to the jurisdiction of Australian courts, there might be a question as to whether individuals within its executive government responsible for tortious acts could be found liable in damages with respect to acts not constituting torture within the Convention. There might also be a question as to how this court could determine whether the conduct was undertaken in an official capacity, in circumstances where the Chinese government itself would not be a party to the litigation. Further, if in part or in whole the conduct were found not to constitute torture, a question might arise as to whether the claims should be allowed to proceed in accordance with principles governing litigation between private parties: cf Regie National des Usines Renault SA v Zhang [2002] HCA 10; 210 CLR 491 at [7]-[10]. 11These questions need not be addressed. To succeed the applicants must demonstrate that the defendants fall outside the general rule of immunity for a foreign State contained in s 9 of the Act (set out at [6] above). The Act contains exceptions with respect to commercial transactions (s 11), employment in Australia by the foreign State (s 12) and proceedings for personal injury in relation to an act of the foreign State in Australia (s 13), amongst other provisions. The only exception relied upon in the present case is submission to the jurisdiction of the court, pursuant to s 10, which relevantly provides: 10 Submission to jurisdiction (1) A foreign State is not immune in a proceeding in which it has submitted to the jurisdiction in accordance with this section. (2) A foreign State may submit to the jurisdiction at any time, whether by agreement or otherwise, but a foreign State shall not be taken to have so submitted by reason only that it is a party to an agreement the proper law of which is the law of Australia. ... (10) Where a foreign State has submitted to the jurisdiction in a proceeding, then, subject to the operation of subsection (3), it is not immune in relation to a claim made in the proceeding by some other party against it (whether by way of set-off, counter-claim or otherwise), being a claim that arises out of and relates to the transactions or events to which the proceeding relates. ... 12For present purposes, a State may submit "by agreement or otherwise", pursuant to s 10(2). The term "agreement" is defined in s 3: 3 Interpretation (1) In this Act, unless the contrary intention appears: agreement means an agreement in writing and includes: (a) a treaty or other international agreement in writing; and (b) a contract or other agreement in writing. 13The applicants' case is that China submitted "by agreement", namely by treaty; that is, by signature (or accession to) or ratification of the Torture Convention: Art 27; see further, G Korontzis, "Making the Treaty", in D Hollis (ed), The Oxford Guide to Treaties (2012, OUP), at 195-198. 14On one view, the concept of "submission" to the jurisdiction of the courts of another State, without reference to any specific dispute or litigation, is inapt. Nevertheless, the language of the Foreign States Immunities Act, acknowledging the possibility of submission by treaty, should be understood to extend to the broader and more abstract proposition. Some conventions use different language: for example, the Rome Statute of the International Criminal Court, the jurisdiction of which includes torture (Art 7.1(f)), provides that "[a] State which becomes a Party to this Statute thereby accepts the jurisdiction of the court with respect to the crimes referred to in Article 5": Art 12.1. There is, however, no express provision in similar terms to be found in the Torture Convention. Rather, the same result is sought to be achieved by indirect inference. 15The relevant inference is that the Convention establishes a system of "universal civil jurisdiction". The primary basis for this contention is to be found in Art 14 which provides: Article 14 1. Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation. 2. Nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law. 16This language is, according to the submission, open to a construction which is unlimited as to the identity of the contravening State defendant. Further support for that broad construction is said to follow from the universal criminal jurisdiction conferred by Arts 4 and 5. The intrusion on national sovereignty by subjecting oneself to an external criminal prosecution is, it was submitted, far greater than the intrusion involved in submitting to a civil claim. Further, in many countries civil claims can attach to a criminal prosecution. Accordingly, the submission continued, an interpretation of Art 14 giving it a narrower operation than the criminal jurisdiction conferred under Arts 4 and 5 would be anomalous. 17Articles 4 and 5 are in the following terms: Article 4 1. Each State Party shall ensure that all acts of torture are offences under its criminal law. ... Article 5 1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases: (a) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State; (b) When the alleged offender is a national of that State; (c) When the victim is a national of that State if that State considers it appropriate. 2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him .... 3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law. 18The applicants' specific submissions turned on the principles applicable to treaty interpretation: it is convenient next to identify those principles.

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International law - principles of treaty interpretation 19The proper approach to the construction of an international convention or treaty is to be found in the Vienna Convention on the Law of Treaties (1969) ("the Vienna Convention") and particularly Arts 31 and 32, which relevantly provide: Article 31: General rule of interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) Any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty; (b) Any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) Any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended. Article 32: Supplementary means of interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) Leaves the meaning ambiguous or obscure; or (b) Leads to a result which is manifestly absurd or unreasonable. 20The operation of Art 31.1 requires that the terms of the treaty be considered in their context and in the light of the object and purpose of the treaty as a whole. Two aspects of this terminology require attention. First, the object and purpose of the treaty "function as a means of shedding light on the ordinary meaning rather than merely as an indicator of a general approach to be taken to treaty interpretation": R Gardiner, Treaty Interpretation (2008, OUP) at 190. Secondly, "context" can, like the beam of light from a lantern, have an expanding field of operation, perhaps with diminished effect as distance from the source increases. At its narrowest, it may refer to the words surrounding the term in question, then to the whole of the article in which the term is found, then to the whole of the treaty and, more broadly, to the additional matters referred in Art 31.2. 21The role of context is explained by Gardiner in the following passage (at 177): "There are two main roles for the references to 'context' in the Vienna rules and two principal aspects of use of context in treaty interpretation under the rules. The first role of the reference to context is as an immediate qualifier of the ordinary meaning of terms used in the treaty, and hence context is an aid to selection of the ordinary meaning and a modifier of any over-literal approach to interpretation. The second role is the identification in the Vienna rules of the material which is to be taken into account as forming context. Context is defined by spelling out the second role, directing attention to the whole text of the treaty, its preamble and any annexes. The fact that context is spelt out broadly in this latter role does not exclude the common meaning of reading something in context as meaning reading words in their immediate surroundings. If a word forms part of a phrase, that is the obvious initial contextual assessment that must be made." 22There is an overriding obligation to interpret a treaty "in good faith". Various courts and commentaries have struggled with the content of this obligation: see references in Gardiner at 147-161. Although this Court was taken to Art 31, it was not submitted that this phrase provided specific assistance in the present case. 23Reference should also be made to Art 31.3. The focus of the applicants' submissions was not on any "subsequent agreement between the parties", but rather "subsequent practice in the application of the treaty". As will be explained below, neither par (a) nor par (b) has application in the present case. The same is not true of par (c), referring to "relevant rules of international law applicable in the relations between the parties." Whether or not "international law" in this context refers to customary law and general principles or, in addition, to treaties, and whether regional and local rules are to be considered, are not issues which affect the outcome in this case. 24The operation of Art 31 has been considered by the High Court. In Morrison v Peacock [2002] HCA 44; 210 CLR 274 the Court stated at [16]: "The effect of Art 31 is that, although primacy must be given to the written text of the [Convention], the context, objects and purpose of the treaty must also be considered. The need to give the text primacy in interpretation results from the tendency of multilateral treaties to be the product of compromises by the parties to such treaties. However, treaties should be interpreted in a more liberal manner than that ordinarily adopted by a court construing exclusively domestic legislation." 25The reasoning reflects (as acknowledged in footnotes) the discussion in the judgment of McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; 190 CLR 225 at 253-255. McHugh J accepted the opinion of Judge Zekia, sitting in the European Court of Human Rights, in Golder v United Kingdom (1975) 1 EHRR 524 at 544 describing the use of context, object and purpose, together with textual analysis, as involving "a single combined operation". McHugh J identified this as "an ordered yet holistic approach": at 254. Thus, to give "primacy" to the written text is not to engage in a staged or step-by-step analysis. Further, there is no great merit in substituting reference to "the terms of the treaty" with reference to "the text" which can sometimes be taken to refer to a particular word or words, which have been identified as the source of uncertainty. Further, there is a risk in running together the terms "context, object and purpose"; in Art 31 "context" refers to the context of the terms, whereas object and purpose are referable to the treaty as a whole. Context should be understood according to the terms of Art 31.2 and taking into account the matters identified in Art 31.3. 26Each of the principles set out in Art 31 is in mandatory terms; by contrast, the supplementary means of interpretation identified in Art 32 are phrased in permissive terms. Adopting that approach, the mandatory factors should be considered first, with such further assistance as may be gained from the preparatory work of the treaty and the circumstances of its conclusion being addressed before reaching a final conclusion.

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Applicants' submissions 27The applicants' grounds of appeal did not helpfully identify the errors said to have been committed by the trial judge. The written submissions, however, as developed orally, may be summarised as follows: (1) The ordinary meaning of the text of Art 14 imposes no territorial limitation on the obligation to provide legal means for victims of torture to obtain redress and compensation. (2) The context provided by the whole of Pt 1 of the Convention (Arts 1-16) demonstrates the use of express terms where territorial restrictions were imposed, thus rendering inappropriate the implication of a restriction in Art 14. (3) The object and purpose of the treaty were to strengthen the pre-existing customary international law prohibition on torture; unless Art 14 were to provide universal civil jurisdiction, the treaty would fail in that purpose. (4) The rule of international law, that there should be a remedy for any right, supports the ordinary meaning of the words without any restriction. (5) State practice when the Convention was opened for signature recognised that civil claims could attach to criminal prosecutions under the national law of many States, thus rendering it likely that Art 14 was intended to provide a universal civil jurisdiction. (6) The preparatory work of the treaty and the circumstances of its conclusion demonstrated that a territorial restriction found in an earlier draft was deliberately omitted from Art 14. (7) Subsequent State practice is not inconsistent with a universal civil jurisdiction. 28Senior counsel for the Commonwealth Attorney submitted that Art 14 was not "the type of treaty provision" contemplated by s 10 of the Foreign States Immunities Act. Rather, s 10 was intended to pick up provisions referred to by the Law Reform Commission in Foreign State Immunity, Report No 24 (1984) at par 13 fn 72 and par 79. An example was the International Convention on Civil Liability for Oil Pollution Damage, which provided in Art XI(2): "With respect to ships owned by a Contracting State and used for commercial purposes, each State shall be subject to suit in the jurisdictions set forth in Article IX and shall waive all defences based on its status as a sovereign State." 29Similar provisions, the Attorney noted, were to be found in the Convention for the Unification of Certain Rules Relating to International Carriage by Air (the Warsaw Convention) and, in an earlier form reflective of Australian domestic legislation imposing liability for tort on governments, the 1926 International Convention for the Unification of Certain Rules Relating to the Immunity of State-Owned Vessels, Arts 1 and 2. These examples, it may be accepted, provided for waiver of sovereign state immunity and thus constituted examples of submission by treaty to the jurisdiction of domestic courts. However, it did not follow that such express provisions were the only form of submission by treaty intended to be covered by s 10 of the Foreign States Immunities Act. It remained necessary to consider the proper construction of Art 14 of the Torture Convention.

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(a) relevant rules of international law 34Part of the context required to be taken into account is identified as "[a]ny relevant rules of international law". This context is important in considering the operation of Art 14 as a whole, in circumstances where the critical issue does not focus upon any particular word or phrase. If, as must be true, "words are chameleons, which reflect the colour of their environment" (Judge Learned Hand in Commissioner of Internal Revenue v National Carbide Corp 167 F2d 304 at 306 (2nd Cir, 1948)) that is also true of complete provisions, such as Art 14. Where the proposed construction involves subjecting a national government (a State party) to the domestic jurisdiction of other national courts, it is important to understand the general principles of international law governing the relationship between States. 35That was not an approach adopted by the applicants: they sought to place reliance upon the much vaguer principle that rights should not be without remedies (ubi jus ibi remedium). A principle at that level of generality is apt to invite, rather than answer, questions as to who enjoys the right, against whom and by whom is it to be enforced? 36In considering national jurisdiction, a critical rule of international law which shall be taken into account, together with context, is identified in the maxim par in parem non habet imperium - one sovereign state is not subject to the jurisdiction of another: see H Fox and P Webb, The Law of State Immunity (3rd ed, 2013, OUP) at 26-27. Secondly, and by way of qualification to the general rule, the applicants submitted, in effect, that there was an exception with respect to torture, which was necessary to give effect to the object and purpose of the Convention. Such an exception would not give rise to jurisdiction in this Court in the face of the Foreign States Immunities Act; rather, it had to be relied on to provide a basis for construing the Torture Convention in such a way that adherence to the Convention constituted submission to national court jurisdiction of (all) other State parties. 37With respect to the general rule, the underlying concept depends not on the proposition that a State is not a juridical person, nor that a State as a political entity cannot be subject to the jurisdiction of its own courts. Whatever the support for such concepts in the past, they have long since passed into history: in Australia, see the legislative reforms with respect to claims against the government in each state and, at a federal level, in the Judiciary Act 1903 (Cth), ss 56-64 and Constitution, s 75(iii) and (v). The modern understanding of the rule of law requires that the agents of government as well as persons acting in a private capacity, be subject to the impersonal application of the law. The concept underlying foreign State immunity should be understood as a reflection of the political principle that those who are independent and autonomous cannot, except by consent, exercise authority over, or establish an external source of authority over, others of independent and autonomous status: H Charlesworth and C Chinkin, The boundaries of international law - A feminist analysis (2000, Manchester UP), at 124, 145. The application of this principle militates against the easy acceptance of the conclusion that any party to a treaty has acceded to the jurisdiction of other national courts through inadvertence or based on ambiguity or derived from uncertain inference. 38That is not to say that the absence of express acceptance of jurisdiction is fatal: language and context may give rise to a necessary implication to similar effect. However, no necessary implication is readily derived from the terms of the Torture Convention itself. The proposed exception to foreign State immunity in the case of torture arguably may be derived from a number of considerations. Article 14 could be approached in two ways. The applicants contended that Art 14 expressed an obligation on all States parties to create a universal civil jurisdiction and thus, by necessary implication, submit to any national jurisdiction established by other States parties in accordance with their treaty obligation. The alternative approach notes that Art 14 contains no express submission to any national jurisdiction, which weighs against the creation of an obligation to create a universal civil jurisdiction.

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(b) terms of Torture Convention 39It is convenient to turn next to the terms of the Torture Convention. Article 1 defines "torture" to mean the intentional infliction of severe pain or suffering, for identified purposes, "when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." Article 2 requires that each State party take effective measures to "prevent acts of torture in any territory under its jurisdiction." Article 3 prohibits return ("refouler") of a person to another State where there are substantial grounds for believing the person would be in danger of torture. Articles 4 and 5 have been set out above. Articles 6-8 deal with obligations with respect to persons who may have committed an offence created in accordance with Art 4. 40There follow a series of Articles dealing with other obligations. Each of Arts 10 (obligation to educate and inform regarding the prohibition against torture), 11 (obligation to review rules for interrogation of those arrested), 12 (investigation of possible acts of torture) and 13 (establishing machinery for complaint) have a local territorial content. Article 10 does not make that explicit, but it is inherently improbable that a State was required to educate and inform law enforcement personnel of other States. Articles 11, 12 and 13 all refer to conduct arising "in any territory under its jurisdiction". 41Article 15 requires that a statement made as a result of torture shall not be invoked as evidence in any proceedings (except against a person accused of torture), which must refer to proceedings under the control of the forum State. Article 16 broadens the scope of the treaty beyond torture as defined: it requires each State party "to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture ...". 42These are all of the substantive Articles which appear in Part 1 of the Convention, in which Art 14 also appears. Although it is true that Art 14 does not contain a limitation to an act of torture committed within the territory under the jurisdiction of the forum State, it is clear that the right of redress which the State is required to ensure "in its legal system" is not directed to enforceable rights arising elsewhere. Part of the subject matter of Art 14 is that the right is, in the first instance, "to fair and adequate compensation". The Article does not identify by whom the compensation is payable: by inference, the party liable must be the individual who undertook the act of torture or the government on whose behalf the act was undertaken. Subject to consideration of Arts 4 and 5, if the intention were to require a State to provide for the enforcement of civil rights against other States, it would seem to be alone in having such an effect: see A Byrnes, "Civil Remedies for Torture Committed Abroad", in C Scott (ed), Torture as Tort, (2001, Hart Publishing) at 542. 43Turning to the operation of Art 5, to say that it establishes a universal criminal jurisdiction is either incorrect, or must be heavily qualified. First, a State is required to take measures necessary to establish its jurisdiction over "offences under its criminal law", being those required to be created by Art 4. Secondly, Art 5.1 operates only in the circumstances identified in pars (a)-(c). Paragraph (a) is localised to offences committed "in any territory under its jurisdiction" (disregarding ships and aircraft). Paragraph (b) requires a different sort of connection, namely that the alleged offender is a national of the home State. Paragraph (c) provides for an optional conferral of jurisdiction (if the forum State considers it appropriate) where the victim is a national of the forum State. 44Before noting the content of Art 5.2, it is necessary to determine the meaning of the words in the chapeau to Art 5.1, "the offences referred to in article 4". On one view, those offences are offences which that State is required to establish "under its criminal law." However, the conditions of jurisdiction referred to in pars (b) and (c) apply in their terms to offences which are not committed in the territory of the forum State. Those paragraphs would be otiose unless the offences referred to are offences either under the criminal law of the forum State or under analogous provisions enacted by another State. That broader meaning is also necessary in order to make sense of Art 5.2 which, by reference to extradition, appears to envisage an offence under a law of another State. (The language, referring "to any of the States mentioned in paragraph I of this article" is confusing: it is theoretically possible, but implausible, that Art 4 requires each State to make it an offence for a foreign government to commit acts of torture within its territory.) 45Again assuming the broader construction of Art 5, being a resident of the forum State is not a necessary condition for the establishment of jurisdiction over offences committed against the person, nor indeed is being a national of the forum State such a precondition (the obligation being discretionary in such a case). Further, a qualified universal criminal jurisdiction is more intrusive than a universal civil jurisdiction, in the sense that criminal proceedings against a State may result in a penalty rather than a liability to pay compensation, against that must be weighed the fact that the moving party in criminal prosecution is the State itself. Thus, to the extent that a universal criminal jurisdiction involves an infringement of the independence of the other State, control of such an infringement lies within the sovereign power of the home State. In an important sense, as has been frequently recognised in a domestic situation, Art 5 is consistent with maintaining within the executive (rather than conferring on private individuals), the power to control relations with foreign States. 46More important than these considerations, however, is the express provision in Art 5, acceptance of which is an integral element of entry into the Convention, of the universal criminal jurisdiction. That element is missing from Art 14 dealing with civil liability. The careful formulation of Art 5, in expansive terms, is incongruent with the proposed assumption of universal jurisdiction in Art 14. 47These considerations invite the conclusion that ratification of, or accession to, the Torture Convention, pursuant to Art 27, did not involve submission by each State party to the jurisdiction of the national courts of all other States parties with respect to claims for compensation arising from alleged acts of torture. That conclusion has support in a number of cases, which the applicants said should not be followed. Before turning to the case law, however, it is appropriate to address the other steps in the application of Arts 31 and 32. 48Further, it is convenient to address at this point the applicants' submission noted at 27 above that, in interpreting Art 14, "it is legitimate also to consider notorious State practice at the time of the adoption of the Convention Against Torture": written submissions, par 25. No authority was cited for this proposition and it is by no means clear what was intended. State practice, to which reference can be had under the Vienna Convention, Art 31, is limited to "subsequent practice in the application of the treaty" (a matter addressed below). It is State practice operating at the level of international relations, and not at the level of common domestic law. The applicants submitted that "it was well known that in many civil law jurisdictions victims of crimes can attach civil claims for compensation to criminal prosecutions". Rather than constituting "notorious State practice" this consideration is better treated as part of the context in which the treaty negotiations took place. 49In support of this contention, the applicants sought assistance from the concurring judgment of Breyer J in Sosa v Alvarez-Machain, 542 US 692 (2004) at 761-763. Sosa involved a claim under the Alien Tort Statute (USA). The question was whether that statute allowed a citizen of one foreign country to sue another for arbitrary arrest, which occurred in the foreign country, in a US court. The Supreme Court held that such a claim fell within the Alien Tort Statute only if permitted by international law. The conclusion of the court that it did not, in which Breyer J joined, did not assist the applicants. However, the applicants relied upon the following consideration dealing with international comity at 762-3. Noting that international law demonstrated procedural agreement that universal criminal jurisdiction extended to torture, Breyer J continued: 'That consensus concerns criminal jurisdiction, but consensus as to universal criminal jurisdiction itself suggests that universal tort jurisdiction would be no more threatening. ... That is because the criminal courts of many nations combine civil and criminal proceedings, allowing those injured by criminal conduct to be represented, and to recover damages, in the criminal proceeding itself. ... Thus, universal criminal jurisdiction necessarily contemplates a significant degree of civil tort recovery as well.'" 50Having taken these matters into account, Breyer J nevertheless found no procedural consensus "supporting the exercise of jurisdiction in these cases": at 763. However, for the applicants' purposes, namely the proper construction of Art 14, the relevance of domestic procedure in civil law countries should find reflection in the terms of the treaty, or at least in the treaty negotiations. There is no express reflection of this consideration in the language of the Torture Convention and the separate treatment of criminal and civil jurisdictions appears to be inconsistent with it being given significant weight. Nor did the applicants refer to any evidence of this consideration being dealt with in the course of treaty negotiations.

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(c) object and purpose of Convention 51The applicants relied upon the object and purpose of the Torture Convention, as reflected in the preamble, as being "to make more effective" the struggle against torture and other cruel, inhuman or degrading treatment or punishment, as reflected in the Universal Declaration of Human Rights and, as they submitted, in customary international law. Important mechanisms to promote that end were to be found in the requirements to establish both criminal and civil jurisdiction. Given that an important element of torture was that it be inflicted by a public official or person acting in an official capacity, the Convention must have been drafted with the understanding that remedies might well not be available within the State responsible for the acts of torture. The applicants relied upon the reasoning of the House of Lords in R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No 3) [2000] 1 AC 147. As described by Lord Bingham in Jones (2006), at 286, [19]: "The essential ratio of the decision [Pinochet (No 3)], as I understand it, was that international law could not without absurdity require criminal jurisdiction to be assumed and exercised where the Torture Convention conditions were satisfied and, at the same time, require immunity to be granted to those properly charged." 52The argument of the applicants seeks to invoke a trend in international law imposing responsibility for human rights violations detected by Fox and Webb as arising in the second half of the 20th century and described as "a phase of radical expansion": at 38. Their description continued: "The obligations of the State have extended to include those owed to the international community as a whole; and obligations owed to individuals have broadened through a network of human rights treaties. The desire to end impunity and to provide redress to victims has been expressed in the establishment of international criminal courts and tribunals and the exercise of universal jurisdiction by national courts. Such developments have suggested a concomitant restriction on the scope of State immunity." 53Support for that approach is found in a dissenting judgment in Al-Adsani v United Kingdom (2002) 34 EHRR 11 at pp 298 and 299 (Rozakis and Caflisch JJ, Wildhaber, Costa, Cabral Barreto and Vajic JJ joining): "By accepting that the rule on prohibition of torture is a rule of jus cogens, the majority recognise that it is hierarchically higher than any other rule of international law, be it general or particular, customary or conventional, with the exception, of course, of other jus cogens norms. ... In the event of a conflict between a jus cogens rule and any other rule of international law, the former prevails. ... Due to the interplay of the jus cogens rule on prohibition of torture and the rules on State immunity, the procedural bar of State immunity is automatically lifted, because those rules, as they conflict with a hierarchically higher rule, do not produce any legal effect." 54This reasoning (described by Lord Hoffmann in Jones (2006) at [43] as "syllogistic") flows from the premise, that the prohibition on torture is jus cogens; jus cogens being a norm from which no derogation is permitted: Vienna Convention, Art 53. The limitations of that trend were revealed in a judgment of the International Court of Justice (ICJ), Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) [2012] ICJ Reports 99. The arguments and findings have been helpfully summarised by Fox and Webb (at 38) in the following terms: "That case concerned Germany's claim before the ICJ that Italy was in breach of international law by reason of the Italian courts' denial of immunity to Germany in proceedings relating to war damage caused by German armed forces in 1943-45. Germany alleged that this breach of Italy related to the denial of German immunity from adjudication by the Italian courts.... Italy responded by supporting her claim with three strands of argument: first, that there is no immunity in international law when a State has committed serious violations of international humanitarian law amounting to war crimes and crimes against humanity; secondly, that there is no State immunity for violations of norms of jus cogens character; thirdly, that the denial of immunity is justified because all other attempts to obtain reparations for the victims had failed. The ICJ in deciding against Italy's claim dismissed all three arguments and further also rejected Italy's contention that the combined effect of the three lines justified an exception to State immunity. In doing so the ICJ based its reasoning on the straightforward exclusionary proposition that the plea of immunity was a procedural plea independent of the issues raised in the Italian claim relating to State responsibility and their determination. The Court stated: 'The rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another State. They do not bear upon the question whether or not the conduct in respect of which the proceedings are brought was lawful or unlawful (para 93).' " 55This analysis is relevant to subsequent State practice; it is also confirmatory of the view expressed by Lord Bingham in Jones (2006) (at [24], quoting an earlier edition of Fox, The Law of State Immunity), that State immunity is a procedural rule which does not contradict a prohibition in a jus cogens norm, but merely diverts any breach to a different settlement mechanism, so that, "[w]here State immunity is applicable, the national court has no jurisdiction to exercise." The current edition of Fox and Webb states at 82: "Immunity comports freedom or exemption from territorial jurisdiction. It bars the bringing of proceedings in the courts of the territorial State (the forum State) against another State. It says nothing about the underlying liability which the claimant alleges. Immunity does not confer impunity; the underlying accountability or substantive responsibility for the matters alleged in a claim remain; immunity merely bars the adjudication of that claim in a particular court." 56The authors proceed to discuss the relationship of the immunity with the concept of jurisdiction, an issue which did not trouble Lord Bingham, but which may be relevant to the way in which the applicants sought to identify the issue in the present case.

[18]

(d) treaty negotiations 57The Convention was adopted by the General Assembly of the United Nations and opened for signature on 10 December 1984. It entered into force on 26 June 1987. The issue of universal jurisdiction arose in the course of the preparatory work for the treaty. This material is available as a supplementary resource in construing the Convention, pursuant to Art 32 of the Vienna Convention. The history relied upon by the applicants was extracted from JH Burgers and H Danelius, The United Nations Convention Against Torture - A Handbook on the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1988, Martinus Nijhoff) ("the Handbook"). 58The UN General Assembly requested the Commission on Human Rights to draw up a draft Convention. The first draft was prepared by the Swedish government and submitted in January 1978: Handbook, at 31. Much of the discussion of the early drafts concerned obligations to prosecute or extradite, with the intention that there be no safe haven from prosecution for those accused of torture. 59The genesis of civil jurisdiction appears to be found in Arts 9 and 10 of the Swedish draft, which required each State party to accept complaints and impartially examine complaints against its public officials, and with respect to torture committed within its jurisdiction (Art 10). Those provisions were followed by the original Art 12 which required each State party to guarantee "an enforceable right to compensation to the victim of an act of torture ... by or at the instigation of its public officials." After debate as to various elements, though not the reference to "its public officials", the working group considering the draft Convention adopted an obligation on each State party to "ensure in its legal system that the victim of an act of torture be redressed and have an enforceable right to fair and adequate compensation including the means for his [rehabilitation]": Handbook, at 69. 60The question of universal jurisdiction was raised during the course of 1981 by the Netherlands delegation, in the course of a debate about criminal prosecution: Handbook, at 72. Further, and its seems incidentally given the absence of any such reference in earlier drafts, it sought the inclusion of the words "committed in any territory under its jurisdiction" after "torture" in Art 14: Handbook, at 74. 61The issue of "universal jurisdiction" was raised again in 1982, in relation to prosecution: Handbook, at 78-79. Much of the debate in 1983 and 1984 focused, it appears, on prosecution, extradition, a possible complaints process to an international body and the extension of certain obligations to cruel, inhuman or degrading treatment or punishment. 62Professor Andrew Byrnes has noted that although the original Swedish draft of Art 14 contained no express territorial limitation, the Netherlands phrase referred to above was included in the draft produced by the working group in 1981, which remained during meetings of the working group in 1982. He continued (at 546): "Yet, by the time of adoption of the final version of the draft Convention in 1982, the phrase had disappeared from the text. Unfortunately, neither the travaux préparatoires nor the commentary by Burgers and Danelius on the [Convention] provide any insight into why this phrase was removed, and it is accordingly difficult to assess whether its disappearance was inadvertent or whether it has some significance. On the one hand, it could be argued that its removal, even if undocumented by the travaux préparatoires, must have been intended to make clear that the revised version was not territorially limited - it cannot be lightly assumed that a crucially important phrase is dropped for no reason. On the other hand, it could be contended that the territorial limitation of the provision must have been seen as being so obvious that it did not need to be spelled out." 63The inclusion and unexplained subsequent omission of the express territorial limitation is perhaps less significant than the absence of discussion of the issue. It seems highly implausible that the countries participating in the negotiations, which included countries like Australia, whose domestic law recognized the immunity of foreign states from civil jurisdiction, would have silently acquiesced in an unqualified universal civil jurisdiction. In this regard, it is significant that, when submitting the Convention to the United States Senate in 1988 the President's note referred to the omitted limitation as having been "deleted by mistake": Torture as Tort at 546. Byrnes noted that "[w]hen it ratified the [Convention], the United States entered an understanding to that effect, a statement which has received no objection from other States parties." 64In short, the treaty negotiations provide only weak support for the proposition that there was to be a universal civil jurisdiction; the preferable view is that the lack of discussion assumed the contrary conclusion.

[19]

(e) State practice 65While it is true that subsequent State practice can be relied upon as a basis for construing a treaty, the practice must relate to or reveal an understanding as to the interpretation of the treaty and must be "concordant, common and consistent": Gardiner at 227, quoting a decision of the Appellate Body of the World Trade Organization in Japan - Alcoholic Beverages. The 1988 understanding identified by the USA, without objection from other States parties, stands squarely counter to the construction sought to be drawn by the applicants. 66The applicants relied upon certain statements in "General Comment No 3 of the Committee Against Torture", issued in 2012. The primary function of the Committee, established under Art 17, is to monitor reports from States parties as to their compliance with the Convention (Art 19) and consider any complaints of systematic torture in the territory of a State party (Art 20). After referring to the duty to prosecute, the Committee stated (at par 22): "The Committee considers that the application of article 14 is not limited to victims who were harmed in the territory of the State party or by or against nationals of the State party. The Committee has commended the efforts of States parties for providing civil remedies for victims who were subjected to torture or ill-treatment outside their territory. This is particularly important when a victim is unable to exercise the rights guaranteed under article 14 in the territory where the violation took place. Indeed, article 14 requires States parties to ensure that all victims of torture and ill-treatment are able to access remedy and obtain redress." 67In Jones v The United Kingdom [2014] ECHR 32 ("Jones (2014)") the European Court of Human Rights stated at [208]: "It has been argued that any rule of public international law granting immunity to State officials has been abrogated by the adoption of the Torture Convention which, it is claimed, provides in its Article 14 for universal civil jurisdiction. This argument finds support from the Committee Against Torture, which may be understood as interpreting Article 14 as requiring that States provide civil remedies in cases of torture no matter where that torture was inflicted .... However, the applicants have not pointed to any decision of the ICJ or international arbitral tribunals which has stated this principle. This interpretation has furthermore been rejected by courts in both Canada and the United Kingdom .... The United States has lodged a reservation to the Convention to express its understanding that the provision was only intend[ed] to require redress for acts of torture committed within the forum State .... The question whether the Torture Convention has given rise to universal civil jurisdictions is therefore far from settled." 68The applicants, faced with the authority in Canadian and UK courts, invited this Court to depart from those decisions. The two appellate decisions in Canada were Bouzari v Islamic Republic of Iran (2004) 71 OR (3d) 675 (Ont CA); 243 DLR (4th) 406 (Goudge, MacPherson and Cronk JJA) and Islamic Republic of Iran v Hashemi (2012) QCCA 1449; 354 DLR (4th) 385 (Morissette, Wagner and Gascon JJA). The applicants were also critical of the reasoning in the House of Lords in Jones (2006). (The cases will be discussed shortly.) 69There are a number of difficulties attending the applicants' reliance on post-Convention State practice which were not fully addressed in the course of argument. First, the argument focused on whether Art 14 should now be considered, as a matter of international law, to confer on each State party an obligation to provide a universal civil jurisdiction for claims in damages by victims of torture in other countries. That is not the relevant question in this case: the question to be determined is whether China submitted to the jurisdiction of Australian domestic courts with respect to claims of torture committed by its officials in China. Unless some conduct of China were to be relied on (and none was), the conduct of other States parties would not appear to be relevant to the question in issue. 70Secondly, in relying upon the publications of the Committee, the applicants submitted that States parties "effectively delegate to the Committee the power to interpret the Convention in exercising its responsibility to ensure compliance with it." While authority was stated for the proposition that it was acceptable in international law to have regard to the views of such bodies, the broader proposition was not shown to be correct. Critically, however, the submission had to go further than the broad proposition stated above and establish that each State party had in effect "delegated" to the Committee its sovereign power to determine whether it had submitted to the jurisdiction of other national States. 71Thirdly, in considering post-Convention State practice, it was assumed that judicial decisions were relevant. It is by no means self-evident why that should be so. Even less obvious is why the State practice of Canada should be identified in judgments of two provincial courts of appeal. (It is equally implausible to think that the State practice of Australia will be found in this judgment.) 72These difficulties need not be resolved. Suffice it to say that post-Convention State practice does not approach the standard of concordant, common and consistent practice required to clarify the meaning of Art 14.

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(f) case law 73With respect to case law, references may be selective. That is because a comprehensive review was undertaken recently by the European Court of Human Rights in Jones (2014). This decision involved a review of the judgment in Jones (2006) in the House of Lords for compliance with the European Convention for the Protection of Human Rights and Fundamental Freedoms (EU), Art 6, enshrining the individual right of access to a court for the settlement of legal disputes as to his or her civil rights and obligations. 74The European Court noted at [198] that the recent judgment of the ICJ, Germany v Italy rejected the contention that there was a jus cogens exception to State immunity with respect to violations of human rights. Summarising the views of the ICJ in that case, the European Court stated at [91],: "On the other hand, the ICJ observed that there was a substantial body of State practice which demonstrated that customary international law did not treat a State's entitlement to immunity as dependent upon the gravity of the act of which it was accused or the peremptory nature of the rule which it was alleged to have violated .... The court further pointed to the judgment of this Court in Al-Adsani [34 EHRR 11] ... which had found no firm basis for concluding that, as a matter of international law, a State no longer enjoyed immunity from civil suit in cases where allegations of torture were made." 75The European Court continued at [93], in its summary of the ICJ rulings: "Turning to consider the relationship between jus cogens and the rule of State immunity, the court found that no conflict existed. The two sets of rules address different matters: the rules of State immunity were procedural in character and were confined to determining whether the courts of one State could exercise jurisdiction in respect of another State; they did not bear upon the question whether the conduct in respect of which the proceedings were brought was lawful or unlawful. There was further no basis for the proposition that a rule which was not of the status of jus cogens could not be applied if to do so would hinder the enforcements of a jus cogens rule." 76Turning from the claim of Mr Jones against the State of Saudi Arabia itself, the Court noted that a similar immunity was accepted in international law with respect to state officials: at [202]. (Amongst other authorities, the Court referred to the decision of this Court in Zhang, at [203].) It then considered whether there was a special rule or exception in respect of acts of torture and held that there was not: at [205]-[214]. 77Given the lack of support for the applicants' construction of Art 14, having regard to the relevant principles of interpretation, and the lack of direct application of the reasoning of domestic courts in other countries, no purpose is to be served in reviewing the reasoning in Canadian, US and UK case law, most of which does not support the applicants' contentions.

Li v Zhou

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