Trans-border protection of human rights under private international law : the application of 'forum necessitatis' and 'forum non conveniens' by national courts

Abstract

The protection of human rights is not solely the responsibility of the human rights law but also extends to various other branches of international law. International human rights law constitutes a system of rules, standards, and customary international legal practices that establish, protect, and promote fundamental rights and freedoms for all members of the global community. On the other hand, private international law governs civil relations with a foreign element and aims to facilitate the development of transboundary relations. At first glance, these two legal fields appear to be distinct and have very little connection. However, they share interrelationships about their impact on human rights protection, including rights to a healthy environment, in the context of economic globalization. Forum necessitatis is used to denote cases where a court of one country lacks jurisdiction over a matter with a foreign element according to the choice of law rules of that country, but can still exercise jurisdiction if it is deemed necessary. The criteria for assessing the absolute necessity are typically situations where the plaintiff cannot exercise their litigation rights or cannot achieve justice if they were to file a lawsuit in the foreign court that would ordinarily have jurisdiction. In practice, instances such as war, coups d’État, political instability, natural disasters, threats to the safety of the plaintiff, lack of justice, etc. have been accepted by courts as grounds to invoke the forum necessitatis. The use of this mechanism can be valuable in transnational human rights cases involving economic activities of multilateral corporations. In contrast to this “universal jurisdiction exercise”, forum non conveniens is employed by courts to “decline” their own jurisdiction. This theory, developed first in countries following the Common Law system, later gained acceptance in numerous other countries worldwide. Forum non conveniens is understood as a national court having jurisdiction under the legal rules but declining to hear the case on the grounds that a foreign court is more suitable for this matter (forum conveniens or natural forum). One of the purposes of the forum non conveniens is to narrow the scope of forum shopping in private international law against its abuse, and direct cases to the court with the closest connection. However, in reality, many national courts have used this mechanism to refuse to adjudicate claims against human rights violations that occurred abroad due to their country’s multilateral corporations’ activities. This paper aims to assess how the choice of law mechanisms, such as forum necessitatis and forum non conveniens, influence the cross-border protection of human rights by examining the legal framework and practical application of these mechanisms in several European and North American countries, where the choice of law systems is well-established. Through the scrutiny of legal provisions and their application in different jurisdictions, we can gain insights into whether these mechanisms either facilitate access to justice for victims of human rights violations in the context of economic globalization or potentially hinder their pursuit of justice.