A/HRC/13/39/Add.5
180. In contrast to other provisions in the Convention against Torture, article 14 does not
contain an express limitation regarding the applicability of the rights contained therein to
acts of torture committed within the territory under the jurisdiction of the State party in
question. In light of the drafting history and the reservations made by State parties upon
ratification, an extraterritorial scope of the right to a remedy remains however
ambiguous.118 In my opinion, a direct legal obligation of the State of residence to provide
full reparation to victims of torture inflicted in a foreign territory and without any
involvement of that State can at the present state of international law not be construed under
article 14 CAT. I welcome however, recent developments of international standards
towards greater responsibility of States for transnational human rights violations as
expressed, for example, in Principle 16 of the UN Basic Principles which stipulates that
“States should endeavour to establish national programmes for reparation and other
assistance to victims in the event that the parties liable for the harm suffered [including
foreign States] are unable or unwilling to meet their obligations”. In addition, obligations of
the host State to provide direct assistance to victims of torture who have sought protection
in foreign countries may of course arise under other international treaties, such as the right
to the highest attainable standard of physical and mental health under article 12 ICESCR, or
the specific obligations under the Geneva Convention Relating to the Status of Refugees.
181. In any case, States should not obstruct the efforts of victims to obtain reparation
from perpetrators, but should instead take such legislative measures as are necessary to
enable survivors of torture to sue their tormenters for damages in civil courts. Such
measures concern in particular the establishment of jurisdiction of a State’s civil courts in
tort cases against the perpetrators, including where the act of torture was committed outside
the territory of the forum State. It also pertains to legislative exceptions to State immunity
and functional immunity of foreign State officials to enable victims to effectively claim
reparation from the perpetrator State or those State officials responsible for torture.
182. In practice, few States have enacted or are considering enacting such enabling
legislation which establishes universal jurisdiction of domestic courts in civil cases. The
most well-known example is the US Alien Tort Claims Act (ATCA), which was used in the
famous Filartiga v Pena-Irala case to allow an alien to sue another alien for damages in a
US court for injuries caused by extraterritorial violations of international law.119 This
legislation was subsequently at issue before the US Supreme Court in the case Sosa v
Alvarez-Machain, in which the Court in principle acknowledged its jurisdiction over
extraterritorial tort claims. In its amicus curiae brief submitted in this case, the European
Commission argued that while the principle of universal civil jurisdiction remained
controversial, it should most appropriately be applied in relation to those human rights
violations for which universal criminal jurisdiction is established. Moreover, the principle
was considered particularly relevant in cases where the claimant would otherwise face a
denial of justice.
183. Ironically, given its pioneering role with regard to civil suits under domestic
legislation, the US has been among the strongest opponents of an extraterritorial application
of the procedural obligations under article 14 CAT. While an extraterritorial scope of the
right of victims of torture to a remedy and reparation has not yet been explicitly assumed in
the State reporting procedures under the Convention, the Committee against Torture has
however encouraged States “to review their position under article 14 of the Convention to
118
119
48
Nowak/McArthur, p. 492. See in particular the express reservation made by the US upon ratification,
which limits the application of article 14 to acts of torture “committed in the territory under the
jurisdiction of that State Party”.
The case concerned the torture and murder of a young Paraguayan who was respectively the son and
brother of the plaintiffs), Filártiga v Peña-Irala, 630 F.2d 876 (C.A., 2d Cir. 1980).
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