Li v Zhou [2014] NSWCA 176

Li v Zhou [2014] NSWCA 176

Article 14 of the Torture Convention, construed according to the Vienna Convention principles, does not require each State Party to provide universal civil jurisdiction for torture claims against other States or their officials and does not amount to China's submission to Australian jurisdiction under s 10 of the Foreign States Immunities Act 1985 (Cth). The first respondent therefore remained immune under the Act, and the primary judge was correct to dismiss the proceedings.

Jurisdiction
Australia
Judgment Date
05 June 2014
Procedural Posture
Civil Appeal Concerning Foreign State Immunity and Submission to Jurisdiction / Applications for Leave to Appeal From Li V Zhou [2013] NSWSC 12, Where the Primary Judge Dismissed an Application for Default Judgment and Dismissed the Proceedings
Outcome
Leave to appeal granted to each applicant; each appeal dismissed; no order as to the costs of the appeals.
Legal Topics
['immunity of Foreign State' 'submission to Jurisdiction by Treaty' 'convention Against Torture, Art 14' 'universal Civil Jurisdiction' 'vienna Convention Treaty Interpretation']
['public International Law' 'foreign State Immunity' 'civil Procedure' 'treaty Interpretation'] ['immunity of Foreign State' 'submission to Jurisdiction by Treaty' 'convention Against Torture, Art 14' 'universal Civil Jurisdiction' 'vienna Convention Treaty Interpretation']

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Procedural Posture

Civil Appeal Concerning Foreign State Immunity and Submission to Jurisdiction / Applications for Leave to Appeal From Li V Zhou [2013] NSWSC 12, Where the Primary Judge Dismissed an Application for Default Judgment and Dismissed the Proceedings

Legal Issues

  1. 1 ['Whether China, by acceding to or ratifying the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, submitted to the jurisdiction of Australian courts for the purposes of Foreign States Immunities Act 1985 (Cth), s 10.' 'Whether Art 14 of the Torture Convention, properly interpreted under Arts 31 and 32 of the Vienna Convention on the Law of Treaties, provides for universal civil jurisdiction for victims of torture.' 'Whether the first respondent was immune from suit under Foreign States Immunities Act 1985 (Cth), s 9.']

Ratio Decidendi

Article 14 of the Torture Convention, construed according to the Vienna Convention principles, does not require each State Party to provide universal civil jurisdiction for torture claims against other States or their officials and does not amount to China's submission to Australian jurisdiction under s 10 of the Foreign States Immunities Act 1985 (Cth). The first respondent therefore remained immune under the Act, and the primary judge was correct to dismiss the proceedings.

Court Disposition

Leave to appeal granted to each applicant; each appeal dismissed; no order as to the costs of the appeals.

Orders

  • ['Grant each applicant leave to appeal.' 'Dismiss each appeal.' 'Make no order as to the costs of the appeals.']