YOUNG v ATTORNEY-GENERAL [2018] NZCA 307

YOUNG v ATTORNEY-GENERAL [2018] NZCA 307 [13 August 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA264/2017[2018] NZCA 307BETWEEN HAYLEY YOUNGAppellantAND ATTORNEY-GENERALFirst RespondentMINISTRY OF DEFENCE (UNITEDKINGDOM)Second RespondentHearing: 13 and 14 March 2018Court: Cooper, Brown and Williams JJCounsel: J L Bates for AppellantA L Martin and T Burgess for First RespondentA S Butler and M W McMenamin for Second RespondentJudgment: 13 August 2018 at 11.30 amJUDGMENT OF THE COURTA The appeal is dismissed.B The appellant must pay the second respondent costs for a standard appealon a band A basis and usual disbursements.____________________________________________________________________Table of ContentsPara No.Introduction [1]Factual background [6]High Court judgment [8]State (or sovereign) immunity [13]A rule of international law [14]The modification of state immunity [16]Jurisdiction [23]Jurisdiction of courts [24]Jurisdiction of states [28]Does New Zealand owe Ms Young an obligation to provide her with aneffective remedy in the New Zealand courts for the wrongdoing shesuffered abroad at the hands of Royal Navy personnel as a matter ofdomestic law under the NZBORA? [35]Does New Zealand owe Ms Young an obligation to provide her with aneffective remedy in the New Zealand courts for the wrongdoing shesuffered abroad at the hands of Royal Navy personnel as a matter ofinternational law because of the nature of the wrongdoing involvingarguable violation of Ms Young's fundamental rights? [54]An obligation as a matter of customary international law [55]An obligation under various treaties [64]A procedural dimension of the right to a remedy [71]The extended jurisdiction argument [88]Should the Court dismiss the protest to jurisdiction by the MOD(UK)on the grounds that the alleged wrongdoing breached a fundamentalprinciple of justice or some deep-rooted tradition of New Zealand whichengages an iniquity exception to the state immunity doctrine? [95]Are the courts of England and Wales or is the High Court ofNew Zealand the more appropriate forum for Ms Young's claim againstthe MOD(UK)? [102]Result [109]REASONS OF THE COURT(Given by Brown J)Introduction[1] A protest by the United Kingdom Ministry of Defence (MOD(UK)) on theground of state immunity to the jurisdiction of the New Zealand courts to hear anddetermine Ms Young's claim in respect of her alleged wrongful treatment byRoyal Navy personnel in the United Kingdom was upheld in the High Court.1 Had it1 X v Attorney-General [2017] NZHC 768, [2017] 3 NZLR 115 [High Court judgment].been necessary to do so Simon France J would also have concluded that as a matter offorum conveniens the courts of England and Wales were the appropriate forum forMs Young's claim against the MOD(UK).2 Ms Young appeals those findings.[2] The thrust of Ms Young's argument against recognition of state immunity as ajurisdictional bar, both in the High Court and in her notice of appeal, was thatNew Zealand should recognise a public policy based "iniquity exception" wherebystate immunity is not upheld where the impugned activity breaches a fundamentalprinciple of justice or some deep-rooted tradition of the forum state. Such an iniquityexception should extend to a case involving allegations of a breach of fundamentalhuman rights provided that the case is substantially connected to the forum state and/orits interests.[3] In this Court Ms Young's argument broadened to include the contention that astate immunity protest should not be upheld because New Zealand owes anon-derogable obligation to provide her with an effective remedy in the New Zealandcourts for the wrongdoing she suffered in the United Kingdom at the hands of RoyalNavy personnel. At the outset of his address Mr Bates captured Ms Young's case inthis way:The appeal rests on this basis: that the appellant as a former officer ofthe Royal New Zealand Navy was in service for her country, serving her state.She remained subject to the de facto and de jure control of the New Zealandgovernment, the New Zealand state itself, and to that end when she washarmed, albeit she was not in the territory of the state, she was subject toNew Zealand's jurisdiction at the time. That means, Your Honours, incounsel's ultimate submission, that the appellant has a right to an effectiveremedy from within the New Zealand legal system.[4] The obligation was said to arise through:(a) the New Zealand Bill of Rights Act 1990 (NZBORA), which affirmsthe International Covenant on Civil and Political Rights (ICCPR); 32 At [58].3 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16December 1966, entered into force 23 March 1976).(b) the Convention against Torture and Other Cruel, Inhuman or DegradingTreatment or Punishment (CAT);4(c) the Convention on the Elimination of All Forms of Discriminationagainst Women (CEDAW);5(d) customary international law, as reflected in particular in theUnited Nations Basic Principles and Guidelines on the Right to aRemedy and Reparation,6 and the Draft Articles on StateResponsibility.7[5] Consequently in our view the broad issues raised by the appeal are:8(a) Does New Zealand owe Ms Young an obligation to provide herwith an effective remedy in the New Zealand courts for thealleged wrongdoing she suffered abroad at the hands of RoyalNavy personnel:(i) as a matter of domestic law under the NZBORA?(ii) as a matter of international law because of the nature ofthe alleged wrongdoing involving arguable violation ofMs Young's fundamental rights?(b) Should the Court dismiss the protest to jurisdiction by theMOD(UK) on the grounds that the alleged wrongdoingbreached a fundamental principle of justice or some deep-rootedtradition of New Zealand which engages an iniquity exceptionto the state immunity doctrine?(c) Are the courts of England and Wales or the High Court ofNew Zealand the more appropriate forum for Ms Young's claimagainst the MOD(UK)?4 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment1465 UNTS 85 (opened for signature 10 December 1984, entered into force 26 June 1987).5 Convention on the Elimination of All Forms of Discrimination against Women 1249 UNTS 13(opened for signature 1 March 1980, entered into force 3 September 1981).6 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of GrossViolations of International Human Rights Law and Serious Violations of InternationalHumanitarian Law GA Res 60/147, A/Res/60/147 (2005).7 Draft articles on responsibility of States for internationally wrongful acts [2001] vol 2, pt 2 YILC26.8 Issue (a) is much more focused than the first of the agreed issues lodged in compliance withr 42A(1) of the Court of Appeal (Civil) Rules 2005, namely: "was the High Court correct to findthat the [MOD(UK)] could successfully object to jurisdiction on the basis of state immunity?"Factual background[6] As in the High Court, for the purposes of this interlocutory appeal Ms Young'sallegations are treated as capable of being established.9 We gratefully adopt thesuccinct outline by Simon France J of the factual allegations:10[5] [Ms Young] joined the Royal New Zealand Navy in 2008 for work ina specialist technical area. She was selected for officer training and performedwell. The Royal New Zealand Navy, along with many other countries, has astanding arrangement in place for some of their employees to receive furthertraining from the Royal Navy. Selection is at the discretion of the RoyalNew Zealand Navy. [Ms Young] was offered and accepted one of those spots.Whilst posted to the Royal Navy, [Ms Young] was under the command of boththe Royal Navy and Royal New Zealand Navy. She continued to be paid bythe Royal New Zealand Navy and the expectation was that she would returnthere upon completion of her training.[6] During the posting [Ms Young] spent time in a shore based trainingfacility and some time on two Royal Navy ships. While at the training facilityand on the ships, [Ms Young] claims that she was subjected to a culture ofsexual harassment:(a) Junior Ratings were allowed by superior officers to dare each other to"conquer" female service women by having sex with them.Rewards were offered;(b) [Ms Young] received constant and unwanted approaches for sexualactivity, and this occurred with the knowledge of superior officers,who did nothing despite knowing it was causing distress;(c) male naval personnel conducted a survey in [Ms Young's] presenceabout who amongst their number wanted to have sex with her; and(d) a particular officer made masturbating gestures in her presence.[7] [Ms Young] also specifies two instances of physical assault (the firstoccurring on a particular UK navy ship, the second on a UK base). In the firsta male naval officer placed his hand on her crotch whilst she ascended a ladder.In the second, a different male officer had sexual intercourse with her withouther consent. These events occurred in 2009. No complaint to authorities wasmade at the time. All the personnel being complained about up to this pointwere members of the Royal Navy, and the events occurred overseas on Britishships or land based facilities.[8] After her training in the United Kingdom concluded, [Ms Young] tookleave for personal travel before returning to the Royal New Zealand Navy.Upon returning, [Ms Young] was required to undertake a joining interviewwith a senior officer. She says that at that interview she complained of the9 Hence in the judgment we dispense with the practice of qualifying references to the wrongfulconduct as "alleged".10 The following passages are from the judgment as issued. The reported version contains minorfactual differences.unsafe environment while posted overseas, including the sexual harassment.It is said the superior officer was dismissive and made inappropriatecomments about such conduct, and her need to cope with it. [Ms Young] wasposted to a Royal New Zealand Navy ship. Whilst on board she says shecomplained to superior officers on the ship about abusive language and lewdcomments being directed towards her. She says she received an unsupportiveresponse from a named officer who it is alleged also witnessed some of theevents.[9] The Royal New Zealand Navy ship [Ms Young] was aboard travelledto overseas ports. At one, [Ms Young] says an officer of the host nation'sservice forced her to compete in a drinking contest and subjected her to sexualharassment and assault.[10] Eventually [Ms Young] was posted to a different Royal New ZealandNavy ship. She claims that on board that ship there continued to be incidentsof harassment with unwanted sexual references. It is claimed male navalemployees were encouraged to drink and to cheat on their partners.[11] The stress of these cumulative events over the years, and what is saidto be a lack of support, led [Ms Young] to resign. Claims are made aboutevents that occurred during the period leading up to this. At one point[Ms Young] recorded her experiences in writing in a document entitled "MyStory". She sent it to the officer who had suggested its publication. It wasthen, without her consent, forwarded to a number of naval personnel.[Ms Young] claims nothing, however, was done in response to the story.[7] Ms Young's claims against the MOD(UK) relevant to the issues in this appealare:11(a) a breach of a duty of care to take all reasonable steps to ensure hersafety while in the United Kingdom, the failures being evidenced byher being subjected to an intimidating, hostile or humiliatingenvironment; and(b) vicarious liability (jointly with the New Zealand Attorney-General(AGNZ)) for the tort of battery, namely the two physical assaults (beingan indecent assault and a rape).High Court judgment[8] Ms Young served the proceeding on the MOD(UK) outside New Zealandwithout leave of the High Court. The MOD(UK) served a notice of appearance11 As recorded by Simon France J in the High Court judgment, above n 1, at [12].objecting to jurisdiction12 which Ms Young then applied to have set aside.13Because the proceeding was served without leave being obtained, both the protest tojurisdiction and the application to set aside the appearance fell to be determined underr 6.29 of the High Court Rules 2016. Hence the onus was on Ms Young to establishthat there was a serious issue to be tried on the merits, New Zealand was theappropriate forum for the trial and any other relevant circumstances which supportedan assumption of jurisdiction.14[9] Simon France J ruled that Ms Young's challenge to the MOD(UK)'s claim ofstate immunity could not succeed for the following reasons:15(a) At common law there is no recognised exception to state immunity forallegations of breaches of fundamental human rights. State immunityis a rule of international law which does not recognise such anexception.(b) This Court's decision in Controller and Auditor-General v Davison16which concerned the recognised commercial exception to stateimmunity did not empower the recognition of the asserted iniquityexception.(c) If the proposed exception was available it would only be applicable incircumstances of more systemic state sponsored violations of humanrights than those alleged by Ms Young.(d) Acceptance of jurisdiction would not be consistent with the dignity ofa foreign state. The claims made against the British government wouldrequire investigation into what happened on British warships and onBritish naval bases and would require inquiry into the internal policiesand procedures of the Royal Navy.12 High Court Rules 2016, r 5.49(1).13 Rule 5.49(5).14 Rules 6.29(1)(a)(ii) and 6.28(5)(b)–(d).15 High Court judgment, above n 1, at [47]–[50].16 Controller and Auditor-General v Davison [1996] 2 NZLR 278 (CA).[10] On the issue of appropriate forum, addressing the factors identified inWing Hung Printing Co Ltd v Saito Offshore Pty Ltd17 the Judge found:18• the liability conduct all occurred in the United Kingdom;• the liability witnesses, other than Ms Young, resided in the United Kingdom;• those witnesses would be compellable in the United Kingdom but not inNew Zealand;• the law of the United Kingdom would be the applicable law to the claim againstthe MOD(UK) for acts occurring in the United Kingdom; and• the subject matter required an inquiry that was much better suited to a court ofEngland and Wales.[11] The Judge weighed Ms Young's claimed disadvantages in this manner:[56] The identified disadvantages [Ms Young] would suffer are theexpense and difficulty of conducting proceedings in England, and the need fortwo court proceedings given the plaintiff is suing AGNZ in relation to thesame events. I accept the former is a valid point but observe [Ms Young] haschosen, as of course is her right, not to avail herself of opportunities toalleviate the difficulties. The Royal Navy has referred the matter to theRoyal Navy Police who would investigate if [Ms Young] wished to make acomplaint, but she declines to do so.[57] As for the need for two proceedings, and subject to any decisionsmade in relation to the AGNZ claims, I accept it is a factor but in thecircumstances do not consider the choice of the plaintiff to also sue AGNZ inrelation to these overseas events is sufficient to overcome the otherwiseoverwhelming conclusion that the Courts of England and Wales are theappropriate forum for the claims against MoD(UK).[12] Before turning to address the issues identified, we consider that it is useful firstto discuss in a preliminary way both the concept of state immunity and the significanceof jurisdiction.17 Wing Hung Printing Co Ltd v Saito Offshore Pty Ltd [2010] NZCA 502, [2011] 1 NZLR 754 at[45]–[46].18 High Court judgment, above n 1, at [55].State (or sovereign) immunity[13] A convenient starting point reflecting the flavour of the competing perspectivesin this appeal is found in the introduction to the Supreme Court decision inLai v Chamberlains:19[1] Access to the Courts for vindication of legal right is part of the rule oflaw. Immunity from legal suit where there is otherwise a cause of action isexceptional. Immunity may be given by statute, as in New Zealand in respectof personal injuries where other, exclusive, redress is provided. An immunitymay attach to status, such as of diplomats or heads of state. All cases ofimmunity require justification in some public policy sufficient to outweigh thepublic policy in vindication of legal right.[2] Public policy is not static. So, for example, the immunities ofthe Crown have been progressively rolled back in response to changingattitudes as to where the public interest lies. And the wide immunity atcommon law for states and heads of state has been restricted and modified bymodern legislation and judicial decisions, often under the influence ofdeveloping international law.A rule of international law[14] State immunity is a rule of international law which precludes the courts of theforum state from exercising adjudicative and enforcement jurisdiction in certainclasses of case in which a foreign state is a party. Its rationale was explained byCooke P in Governor of Pitcairn and Associated Islands v Sutton:20Sovereign immunity is a doctrine applying to sovereign states or, as it issometimes expressed, independent sovereign states. In general at commonlaw, reflecting international law, such a state will not be impleaded inthe Courts of another country (in this instance New Zealand) against its willand without its consent; the exercise of jurisdiction is seen as incompatiblewith the dignity and independence of the foreign state.[15] A useful elaboration on the basis of the doctrine is contained in a commentaryof the International Law Commission cited by Sir Kenneth Keith in his separateopinion in the decision of the International Court of Justice (ICJ) in JurisdictionalImmunities of the State (Germany v Italy: Greece intervening).21 Under the heading"Rational bases of State immunity" it was said:2219 Lai v Chamberlains [2006] NZSC 70, [2007] 2 NZLR 7 (footnotes omitted).20 Governor of Pitcairn and Associated Islands v Sutton [1995] 1 NZLR 426 (CA) at 428.21 Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) [2012] ICJ Rep 99at 165.22 Jurisdictional Immunities of States and their Property [1980] vol 2, pt 2 YILC 137 at 156.The most convincing arguments in support of the principle of State immunitymay be found in international law as evidenced in the usage and practice ofStates and as expressed in terms of the sovereignty, independence, equalityand dignity of States. All these notions seem to coalesce, together constitutinga firm international legal basis for State immunity. State immunity is derivedfrom sovereignty. Between two co-equals, one cannot exercise sovereign willor authority over the other: par in parem imperium non habet.The modification of state immunity[16] The narrowing of state immunity noted in Lai v Chamberlains first involvedthe relaxation of the absolutist principle to a "restrictive" theory of state immunitywhereby the commercial activities of states were no longer protected. In Playa Larga(Owners of Cargo Lately Laden on Board) v I Congreso del Partido (Owners)Lord Wilberforce explained the distinction between "jure gestionis" (translated as a"private act") and "jure imperii" (a "sovereign or public act").23 The restrictivedoctrine recognised state immunity only in respect of the latter. Hence a foreign statecould sue,24 and be sued, in the courts of a forum state in respect of private actsundertaken by the foreign state.[17] However, subject to the recent developments discussed below, litigationinvolving the sovereign or public acts of a foreign state may only occur in the courtsof a forum state with the agreement of the relevant state. Thus a foreign state may notinitiate a claim in respect of a sovereign or public act in the court of a forum state,unless the forum state agrees to "unlock the door" of the forum state's court.25Correspondingly a foreign state may not be sued in the courts of a forum state inrespect of a sovereign or public act unless the foreign state waives its entitlement tostate immunity by a voluntary submission to the forum court's jurisdiction.26[18] The last two decades in particular have witnessed what James Crawforddescribes as a persistent tension in the case law between the profile of state immunityand the principles of human rights.27 Particularly in the context of torture it has been23 Playa Larga (Owners of Cargo Lately Laden on Board) v I Congreso del Partido (Owners) [1983]1 AC 244 (HL) at 262.24 Attorney-General for England and Wales v R [2002] 2 NZLR 91 (CA) at [3].25 Attorney-General for the United Kingdom v Wellington Newspapers Ltd [1988] 1 NZLR 129 (CA)at 173–175 per Cooke P.26 Benkharbouche v Embassy of the Republic of Sudan [2017] UKSC 62, [2017] 3 WLR 957 at 969.27 James Crawford Brownlie's Principles of Public International Law (8th ed, Oxford UniversityPress, Oxford, 2012) at 505.argued that immunity should not be recognised for the reason that the prohibition oftorture is a peremptory norm or jus cogens which takes precedence over other rules ofinternational law including the rules of state immunity.28[19] In The Law of State Immunity Hazel Fox and Philippa Webb analyse theevolution of state immunity during the last 200 years utilising three models, the Firstand Second being the absolute and restrictive doctrines respectively.29 It is theThird Model which is to the forefront of the argument advanced by Ms Young in thiscase.[20] The context to the Third Model is explained in this way:30In the second half of the twentieth century and in particular since 1990, thescope of international law and the requirements of responsibility which itimposed appeared to be in a phase of radical expansion; this has beenaccompanied by a shift from the bilateralism of rights to a vertical hierarchy.The obligations of the State have extended to include those owed to theinternational community as a whole; and obligations owed to individuals havebroadened through a network of human rights treaties. The desire to endimpunity and to provide redress to victims has been expressed in theestablishment of international criminal courts and tribunals and the exerciseof universal jurisdiction by national courts. Such developments havesuggested a concomitant restriction on the scope of State immunity.These developments were welcomed by proponents of the restrictive doctrineas heralding a further restriction of State immunity so as to permit claims tobe brought in national courts against a State for injury committed, not solelyin respect of commercial transactions, but in a wider field.[21] However Fox and Webb suggest that, contrary to such expectations, theThird Model appears to be moving into a more exclusionary phase with the applicationof state immunity confined to a procedural plea in the presentation of a claim againsta foreign state in a national court.31 In assessing the Third Model they state:32This review of State practice may lead one to describe the Third Model as bothregressive and exclusionary, a recognition that the time is not ripe for28 A peremptory norm or jus cogens is defined as a norm accepted and recognised by the internationalcommunity of states as a whole as a norm from which no derogation is permitted: ViennaConvention on the Law of Treaties 1155 UNTS 331 (opened for signature 23 May 1969, enteredinto force 27 January 1980), art 53.29 Hazel Fox and Philippa Webb The Law of State Immunity (3rd ed, Oxford University Press,Oxford, 2013) at ch 2.30 At 38.31 At 38.32 At 46.unilateral decisions of national courts to provide solutions to highly politicalclaims.The better view, however, is to treat the Second and Third Models as swingsof a pendulum.[22] We will return to consider the implications of the Third Model in our analysisof Ms Young's contention that on the basis of certain treaty obligations New Zealandis required to provide her with an effective remedy in New Zealand in respect ofwrongdoing which occurred abroad.Jurisdiction[23] Jurisdiction has been described as a slippery word.33 While as a matter ofetymology it originally meant 'speaking the law', in essence it is now understood tomean the exercise of legal authority. In international law it refers to a state'scompetence to regulate the conduct of natural and juridical persons through allbranches of government: legislative, executive and judicial.34Jurisdiction of courts[24] In the context of r 5.49 of the High Court Rules, the jurisdiction which is thesubject of protest is the entitlement of a court to entertain a suit. If a valid claim tostate immunity is made in respect of a claim concerning a sovereign or public act, theforum court has no jurisdiction over the proceeding. In Garthwaite v Garthwaite,where Diplock LJ advanced his classic expression of the meaning of jurisdiction,35 hisLordship criticised an earlier description of jurisdiction in this way:36I think, with respect, that [Pickford LJ] defined the strict sense too narrowly,for it would not embrace the court's lack of jurisdiction to entertain a suitbased upon the personality of a party, as, for instance, in the case of a suitagainst a foreign sovereign or ambassador.33 T-Mobile (UK) Ltd v Office of Communications [2008] EWCA Civ 1373, [2009] 1 WLR 1565 at[39] per Jacob LJ.34 Crawford, above n 27, at 456.35 Adopted by the Supreme Court in Commissioner of Inland Revenue v Redcliffe Forestry VentureLtd [2012] NZSC 94, [2013] 1 NZLR 804 at [25].36 Garthwaite v Garthwaite [1964] P 356 (CA) at 387. The description that Diplock LJ wascriticising appeared in Guaranty Trust Co of New York v Hannay & Co [1915] 2 KB 536 (CA) at563 per Pickford LJ.[25] Where a court has no jurisdiction over a proceeding, it necessarily follows thatit has no power or discretion to entertain it. As Lord Bingham of Cornhill explainedin Jones v Ministry of the Interior of the Kingdom of Saudi Arabia:37Based on the old principle par in parem non habet imperium, the rule ofinternational law is not that a state should not exercise over another state ajurisdiction which it has but that (save in cases recognised by internationallaw) a state has no jurisdiction over another state. I do not understand how astate can be said to deny access to its court if it has no access to give. This wasthe opinion expressed by Lord Millett in Holland v Lampen-Wolfe [2000] 1WLR 1573, 1588, and it seems to me persuasive.[26] Of course it will be necessary from time to time for a court to exercise thethreshold power to determine whether or not it has jurisdiction.38 Having done so, ifthe court determines that it does not have jurisdiction, then the matter proceeds nofurther.[27] It is important to recognise that such preliminary inquiry does not import anydiscretion to assume jurisdiction. State immunity is a mandatory rule of customaryinternational law which defines the limits of a domestic court's jurisdiction.39 It is nota "self-imposed restriction on the jurisdiction of [the] courts" but a "limitationimposed from without".40Jurisdiction of states[28] A second meaning of jurisdiction relates to the extent of the territory overwhich a state exercises authority and control. It is in this sense that the word is usedin art 1 of the European Convention on Human Rights (ECHR) discussed in severalof the authorities cited in argument.41 It states:The High Contracting Parties shall secure to everyone within their jurisdictionthe rights and freedoms defined in section 1 of this Convention.37 Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2006] UKHL 26, [2007] 1 AC270 at [14].38 Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd, above n 35, at [20].39 Benkharbouche, above n 26, at [17].40 Holland v Lampen-Wolfe [2000] 1 WLR 1573 (HL) at 1588 per Lord Millett.41 Convention for the Protection of Human Rights and Fundamental Freedoms 213 UNTS 221(opened for signature 4 November 1950, entered into force 3 September 1953).[29] A state's jurisdictional competence under art 1 is primarily territorial. Save forexceptional cases, the engagement undertaken by a contracting state is confined tosecuring the listed rights and freedoms to persons within its own territory.42However as Lord Hope observed in Smith v Ministry of Defence the word"exceptional" is there not to set an especially high threshold for circumstances to crossbefore they can justify a finding that a state is exercising jurisdictionextraterritorially.43[30] It has been recognised in English authorities that in certain circumstances astate's jurisdiction for the purposes of art 1 may extend to persons who are for the timebeing outside its territory. In Smith the United Kingdom Supreme Court held that thejurisdiction of the United Kingdom extended to securing the protection of art 2 ofthe ECHR (the right to life) to members of the armed forces when they were servingoutside its territory. Hence at the time of the deaths of two British soldiers in Iraq theywere within the jurisdiction of the United Kingdom for the purposes of art 2. This wasnot seen as inconsistent with the general principles of international law as no otherstate was claiming jurisdiction over them.[31] With reference to the proposition that authorised agents of a state remain underits jurisdiction when abroad, Lord Hope observed:44It is plain, especially when one thinks of the way the armed forces operate,that authority and control is exercised by the state throughout the chain ofcommand from the very top all the way down to men and women operating inthe front line. Servicemen and women relinquish almost total control overtheir lives to the state. It does not seem possible to separate them, in theircapacity as state agents, from those whom they affect when they are exercisingauthority and control on the state's behalf. They are all brought within thestate's article 1 jurisdiction by the application of the same general principle.[32] It is in this sense of the extraterritorial application of jurisdiction thatMs Young claims that, when serving as a New Zealand Navy officer in theUnited Kingdom, she was subject to New Zealand jurisdiction at the time. That is thereason why she contends that this is a case involving the application of "travelling"42 Al-Skeini v United Kingdom (2011) 53 EHRR 589 (Grand Chamber, ECHR) at [131].43 Smith v Ministry of Defence [2013] UKSC 41, [2014] AC 52 at [30].44 At [52].fundamental human rights which includes the right to an effective civil remedy fromwithin the legal system of New Zealand.[33] However, the argument for Ms Young advocates an extension to theextraterritoriality exception. She contends that a victim's right to an effective remedy,from a competent authority of the state the victim was subject to when the humanrights violation occurred, arises irrespective of who is ultimately responsible for thatviolation. She submits that the duty to supply an effective civil remedy isdemonstrably a "nationalised one", and that the obligation to ensure the right toeffective remedies from within the New Zealand legal system cannot be "outsourced".[34] This asserted right, which is described as absolute and not capable ofderogation or limitation, is said to trump the doctrine of state immunity.Does New Zealand owe Ms Young an obligation to provide her with an effectiveremedy in the New Zealand courts for the wrongdoing she suffered abroad at thehands of Royal Navy personnel as a matter of domestic law under the NZBORA?[35] Ms Young's contention that New Zealand owes her such an obligation isadvanced on the premise that a purpose of the NZBORA is to affirm New Zealand'scommitment to the ICCPR, art 2 of which relevantly states:1. Each State Party to the present Covenant undertakes to respect and toensure to all individuals within its territory and subject to its jurisdiction therights recognized in the present Covenant, without distinction of any kind,such as race, colour, sex, language, religion, political or other opinion,national or social origin, property, birth or other status.3. Each State Party to the present Covenant undertakes:(a) To ensure that any person whose rights or freedoms as hereinrecognized are violated shall have an effective remedy,notwithstanding that the violation has been committed bypersons acting in an official capacity;(b) To ensure that any person claiming such a remedy shall havehis right thereto determined by competent judicial,administrative or legislative authorities, or by any othercompetent authority provided for by the legal system of theState, and to develop the possibilities of judicial remedy;(c) To ensure that the competent authorities shall enforce suchremedies when granted.(Emphasis added).[36] Mr Bates' written submission in reply framed the proposition in this way:Parliament's enactment of the NZBORA which contains an affirmation of theICCPR, and reinforced by all [State's] acceptance of the UN Basic Principlesand Guidelines creates obligations on the New Zealand State to supply aneffective national remedy to those who tenably maintain their fundamentalhuman rights, which include the right to be free of cruel and degradingtreatment, have been violated, and applies irrespective of who is ultimatelyresponsible for the violation.[37] While the primary response of the MOD(UK) is that the NZBORA has noapplication to it, Mr Butler also raised a pleading point that Ms Young's statement ofclaim does not allege any infringement of a right guaranteed by the NZBORA.Although Mr Bates' written submissions suggested that there was a pleaded allegationthat Ms Young's "statutory human rights have been infringed", we consider MrButler's analysis of the pleading is correct. Nevertheless, the issues having beencomprehensively argued, we proceed on the footing that an appropriate amendmentcan be made if required.[38] The object of the NZBORA is to affirm, protect and promote human rights andfundamental freedoms "in New Zealand".45 The NZBORA is specific as to its reach.Section 3 states:3 ApplicationThis Bill of Rights applies only to acts done—(a) by the legislative, executive, or judicial branches of theGovernment of New Zealand; or(b) by any person or body in the performance of any publicfunction, power, or duty conferred or imposed on that personor body by or pursuant to law.[39] It is uncontroversial that a person whose legislatively affirmed rights under theNZBORA are infringed in New Zealand by an entity specified in s 3 is entitled to an45 New Zealand Bill of Rights Act 1990, long title.effective remedy in relation to that breach in the courts of New Zealand.46However the implications of the statute for acts performed abroad have yet to beauthoritatively explored.[40] Although the first limb of the long title refers to the protection of human rightsand fundamental freedoms "in New Zealand", the NZBORA does not contain anyexpress limitation to acts done within New Zealand. Andrew Butler and Petra Butlermade the point that the avowed purpose would not be advanced if New Zealandofficials could avoid the application of the NZBORA simply by conductingNZBORA-inconsistent acts offshore.47 We consider that there is no reason in principlewhy the NZBORA should not be interpreted to apply to acts that would otherwise fallwithin the ambit of s 3 by reason only that they occur offshore.[41] In interpreting the NZBORA with reference to potential extraterritorialapplication Paul Rishworth and others in The New Zealand Bill of Rights suggest twoapproaches:48The first is that the rights, being in the main conferred on 'everyone' or 'everyperson', are literally intended to benefit every person in the world, albeit thatthey will have practical 'bite' only when a person has some interaction withthe Government of New Zealand. On this view they may be invoked inrelation to acts carried out by agents of the New Zealand Government orpublic actors in other jurisdictions. The second and narrower approach is thatalthough everyone has rights, they have them only against the New ZealandGovernment acting as such, and hence only in New Zealand and places whereit asserts a territorial or personal jurisdiction.[42] Ms Young's contention involves an extension of that second approach.We apprehend her claim to be that, for the duration of her service as a member ofthe New Zealand military forces, there is an assertion by the New ZealandGovernment of a personal jurisdiction over her and that such jurisdiction over her ismaintained when she travels beyond New Zealand in the course of her military service.This reflects the approach in Smith.4946 Simpson v Attorney-General [1994] 3 NZLR 667 (CA) [Baigent's case].47 Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed,LexisNexis, Wellington, 2015) at [5.16.3].48 Paul Rishworth and others The New Zealand Bill of Rights (Oxford University Press, Melbourne,2003) at 114.49 Smith v Ministry of Defence, above n 43.[43] Assuming for the purpose of analysis the adoption in New Zealand of theextraterritorial jurisdiction recognised in Smith, it would follow that, if while on activeservice abroad Ms Young's NZBORA rights were infringed there by a person to whomthe NZBORA applies, then she would be entitled to bring a proceeding in New Zealandand to obtain an effective remedy in the courts of New Zealand.[44] However Ms Young's claim is a different one. Her complaint relates to actionswhich occurred beyond the territory of New Zealand by persons who were membersof the military services of another state, that is the Royal Navy, who at the materialtime were subject to the authority and control of the MOD(UK).[45] The MOD(UK) is not one of the three branches of the New ZealandGovernment. Nor by the activities of its service personnel undertaken in theUnited Kingdom did the MOD(UK) undertake any public act which it was authorisedto do by New Zealand law. The expression in s 3(b) "by or pursuant to law" meansby or pursuant to the laws of New Zealand.50 Hence Mr Butler contends that theMOD(UK) is not an actor to whom the NZBORA applies.[46] In our view that submission is sound and we accept it. The claims brought byMs Young against the MOD(UK) which are the subject of this appeal are not claimsagainst an entity within s 3. Mr Bates acknowledged in the course of argument thatthe NZBORA does not provide any basis for action against the MOD(UK). We wouldadd that Ms Young's claim cannot derive validity, as her written submissionsproposed, by seizing on the judgment currently under appeal as representing an "actdone" by the judicial branch of the Government for the purposes of s 3.[47] Our conclusion has significant implications for Ms Young's broad contentionat [33] above. Her contention focuses on the references in art 2(1) of the ICCPR to"subject to its jurisdiction" and in art 2(3)(a) to the availability of "an effectiveremedy". This is illustrated by two passages from the summary in her writtensubmissions: the New Zealand state [has an] obligation to provide guaranteed effectivecivil remedies to the Appellant, which includes access to a competent50 R v Matthews (1994) 11 CRNZ 564 (HC) at 566.authority from within its own legal system, to hear and determine arguableviolations of protected human rights, at a time the Appellant "was subject to"New Zealand's jurisdiction The right to an effective remedy, from a competent authority of the State thealleged victim was subject to when the alleged violation of their human rightsoccurred, arises irrespective of who is ultimately responsible for thatviolation [48] Although non-specific as to a defendant, the claim in contemplation could onlylie against the AGNZ. Consequently it would not give rise to a state immunity issue.However, given the manner in which the argument has evolved, we will address thepoint. Liabilities in respect of the New Zealand provisions can only arise in respectof s 3 actors. Ms Young's rights under the NZBORA may indeed travel with her toforeign climes but the liabilities which can arise in respect of breaches of rightsaffirmed in the NZBORA do not expand to include other categories of person who arenot acting under or regulated by New Zealand law.[49] One of the several ways in which Mr Bates submitted that Smith was appositewas "as to the affirmation of the positive nature of Convention rights, including theapplication of such Convention rights irrespective of who is ultimately responsible forcausing the deaths".51 The relevant convention right in Smith was art 2.1 of the ECHR,the right to protection of life. At issue was the substantive obligation52 which requireda state not to take life without justification and also, as Lord Hope explained, byimplication to establish a framework of laws, precautions, procedures and means ofenforcement which will, to the greatest extent reasonably practical, protect life.53[50] Plainly enough the obligation to take such steps for the protection of life is notdependent upon the particular identity of the source of the threat. It is not an obligationlimited to threats to life which emanate from the umbrella of the state itself. Hence,to adapt Mr Bates' submission, it applies irrespective of who may ultimately be thesource of a threat to life.51 Underlining as in the written submission.52 The case did not concern the procedural obligation implied into the article of a duty to investigatein order to make sure that the substantive right is effective in practice.53 Smith v Ministry of Defence, above n 43, at [57].[51] However it does not follow that where loss of life occurs the state has anyobligation to provide a remedy against persons responsible for the loss of life who arenot state agents. The point is apparent, we think, from the discussion in R (Long) vSecretary of State for Defence of the nature of the duty to investigate required byart 2:5493. the nature of the investigation required by article 2, where a dutyto investigate arises, depends on the circumstances, including thenature of the substantive obligation of which there is a possiblebreach. As stated by Lord Phillips in R (L) v Secretary of State forJustice [2009] AC 588, para 31:The duty to investigate imposed by article 2 covers a verywide spectrum. Different circumstances will trigger the needfor different types of investigation with differentcharacteristics. The Strasbourg court has emphasised theneed for flexibility and the fact that it is for the individual stateto decide how to give effect to the positive obligationsimposed by article 2.94. There is a significant distinction in this respect between cases wherethe suspected breach is of a positive obligation to protect life and caseswhere state agents are suspected of unlawful killing. In cases of thelatter type a key purpose of the investigation is to identify whethercrimes have been committed and, if so, to prosecute and punish thoseresponsible. Many of the authorities in which the article 2investigative duty has been considered have been cases of this kind —for example, the Jordan case referred to above. Statements in thoseauthorities about the need to identify and punish individuals must beseen in that context.[52] We consider that provision of a remedy for the death of a citizen of a state bythe identification and prosecution of individuals responsible is confined to suchindividuals over whom the state has jurisdiction. Consequently Smith is not authorityfor the proposition which Mr Bates seeks to draw from it.[53] To conclude on this issue, the relevant obligation of the New Zealand state toprovide an effective remedy in its courts relates only to liabilities which arise underthe NZBORA. It does not extend to providing relief in relation to the actions of foreignpersons or entities who are beyond the ambit of s 3 even in a proceeding against theAGNZ. It follows that Ms Young's proposition that the New Zealand state has an54 R (Long) v Secretary of State for Defence [2014] EWHC 2391 (Admin). This observation is notthe subject of consideration in the Court of Appeal decision: R (Long) v Secretary of State forDefence [2015] EWCA Civ 770, [2015] 1 WLR 5006.obligation to provide an effective remedy under the NZBORA in the courts ofNew Zealand irrespective of the identity of the wrongdoer is not correct.Does New Zealand owe Ms Young an obligation to provide her with an effectiveremedy in the New Zealand courts for the wrongdoing she suffered abroad at thehands of Royal Navy personnel as a matter of international law because of thenature of the wrongdoing involving arguable violation of Ms Young'sfundamental rights?[54] This issue mirrors the previous one, save that the obligation to provideMs Young with an effective remedy in New Zealand is said to derive frominternational law, either by virtue of various treaties or as a matter of customaryinternational law. We propose to discuss the customary law issue first because itprovides a useful backdrop to the arguments based on particular treaties.An obligation as a matter of customary international law[55] Prominent in Mr Bates' oral argument was the decision of the European Courtof Human Rights (ECtHR) in Al-Adsani v United Kingdom55 which concerned therejection on the ground of state immunity of Mr Al-Adsani's civil claim brought inEngland against the state of Kuwait for his maltreatment in Kuwait.56 Mr Al-Adsanicontended that his claim related to torture and that the prohibition of torture hadacquired the status of a jus cogens norm in international law, taking precedence overtreaty law and other rules of international law.[56] Mr Bates placed emphasis on the powerful minority view that upholding theclaim of immunity was a violation of Mr Al-Adsani's right of access to a court underart 6 of the European Convention. However, by the slimmest of margins (as he put it)the ECtHR held (by nine votes to eight) that there had been no violation of art 6,observing:61. While the Court accepts, on the basis of these authorities, that theprohibition of torture has achieved the status of a peremptory norm ininternational law, it observes that the present case concerns not, as inFurundzija and Pinochet, the criminal liability of an individual foralleged acts of torture, but the immunity of a State in a civil suit for55 Al-Adsani v United Kingdom (2001) 34 EHRR 273 (Grand Chamber, ECHR).56 Al-Adsani v Government of Kuwait (No 2) (1996) 107 ILR 536 (CA). Leave to appeal to the Houseof Lords was refused.damages in respect of acts of torture within the territory of that State.Notwithstanding the special character of the prohibition of torture ininternational law, the Court is unable to discern in the internationalinstruments, judicial authorities or other materials before it any firmbasis for concluding that, as a matter of international law, a State nolonger enjoys immunity from civil suit in the courts of another Statewhere acts of torture are alleged.[57] An argument that the conclusion in Al-Adsani was wrong and that thereasoning of the minority should be preferred was rejected by the House of Lords inJones.57 It was there held that both the Kingdom of Saudi Arabia and its responsibleofficers were protected by state immunity in proceedings brought in Englandconcerning claims of torture by members of the Saudi Arabian police. Lord Hoffmannobserved that, while the prohibition on torture is undoubtedly a peremptory norm, theissue was whether such a norm conflicted with a rule which accords state immunity.He considered that the syllogistic reasoning of the minority in Al-Adsani simplyassumed that it did.58[58] Mr Bates also placed reliance on what he described as the ground-breakingdecision of Ferrini v Federal Republic of Germany where, distinguishing Al-Adsani,the Italian Court of Cassation entertained a civil claim based on war crimes committedin 1944–1945 partly in Italy but mainly in Germany.59 However in JonesLord Hoffmann reasoned that Ferrini exhibited the same bare syllogistic reasoning ofthe minority in Al-Adsani. In response to an argument that Ferrini should be seen asgiving priority to the values embodied in the prohibition of torture over the values andpolicies of the rules of state immunity, he said:60As Professor Dworkin demonstrated in Law's Empire (1986), the ordering ofcompeting principles according to the importance of the values which theyembody is a basic technique of adjudication. But the same approach cannotbe adopted in international law, which is based upon the common consent ofnations. It is not for a national court to "develop" international law byunilaterally adopting a version of that law which, however desirable,forward-looking and reflective of values it may be, is simply not accepted byother states.57 Jones, above n 37.58 At [43].59 Ferrini v Federal Republic of Germany (2004) 128 ILR 658 (Italy, Court of Cassation).60 Jones, above n 37, at [63].[59] Similarly Lord Bingham observed that Ferrini could not be treated as anaccurate statement of international law as generally understood, remarking that oneswallow does not make a rule of international law.61[60] The issue has more recently been explored in Germany v Italy, a number ofpassages from which were recited in the judgment of Simon France J. As Mr Martinfor the AGNZ submitted, the ICJ there firmly rejected the argument that customaryinternational law had developed to the point where a state is deprived of immunity foraccusations of serious violations of international human rights law. The Court citedextensive state practice demonstrating that customary international law does not treata state's entitlement to immunity as dependent upon "the gravity of the act of which itis accused or the peremptory nature of the rule which it is alleged to have violated".62[61] Indeed the Court made clear that upholding the proposed exception to stateimmunity would present a broader logical problem:82. At the outset, however, the Court must observe that the propositionthat the availability of immunity will be to some extent dependent upon thegravity of the unlawful act presents a logical problem. Immunity fromjurisdiction is an immunity not merely from being subjected to an adversejudgment but from being subjected to the trial process. It is, therefore,necessarily preliminary in nature. Consequently, a national court is requiredto determine whether or not a foreign State is entitled to immunity as a matterof international law before it can hear the merits of the case brought before itand before the facts have been established. If immunity were to be dependentupon the State actually having committed a serious violation of internationalhuman rights law or the law of armed conflict, then it would become necessaryfor the national court to hold an enquiry into the merits in order to determinewhether it had jurisdiction. If, on the other hand, the mere allegation that theState had committed such wrongful acts were to be sufficient to deprive theState of its entitlement to immunity, immunity could, in effect be negatedsimply by skilful construction of the claim.[62] The approach of the ICJ was endorsed still more recently bythe United Kingdom Supreme Court in Belhaj v Straw where Lord Mance stated:6314. It follows that state immunity is a personal immunity, rationepersonae, possessed by the state in respect of its sovereign activities (acta jureimperii) so far as these do not fall within any of the exceptions. When stateimmunity exists, the nature and gravity of the alleged misconduct are61 At [22].62 Germany v Italy, above n 21, at [84]–[85].63 Belhaj v Straw [2017] UKSC 3, [2017] AC 964 at [14].irrelevant. Even the admitted illegality of the acts complained of "does notalter the characterisation of those acts as acta jure imperii": JurisdictionalImmunities of the State [2012] ICJ Rep 99, para [60] [63] The New Zealand courts look to international practice as illustrated indecisions of overseas courts and apply the established approach to immunity inNew Zealand. Consistent with the clear direction provided in the authoritiesdiscussed, we reject Mr Bates' assertion (to the extent it was maintained) of theNew Zealand state's obligation to provide to Ms Young a remedy in New Zealandcourts for the conduct of the Royal Navy personnel in England founded on customaryinternational law.64An obligation under various treaties[64] Ms Young's argument relies upon provisions in three treaties; the ICCPR, CATand CEDAW. Article 2 of the ICCPR is noted in the previous discussion of theNZBORA-based contention.65[65] The relevant CAT provision which Ms Young seeks to invoke is:Article 14:1. Each State Party shall ensure in its legal system that the victim of an act oftorture obtains redress and has an enforceable right to fair and adequatecompensation, including the means for as full rehabilitation as possible. 66[66] Ms Young also points to art 2 of CEDAW which materially provides that:States Parties condemn discrimination against women in all its forms, agreeto pursue by all appropriate means and without delay a policy of eliminatingdiscrimination against women and, to this end, undertake:(c) To establish legal protection of the rights of women on anequal basis with men and to ensure through competent national64 Mr Butler drew attention to the analysis of Germany v Italy in Mr Bates' initial submission to theeffect that "[the International Court of Justice] plainly rejected the hierarchical norms theory thatjus cogens rules automatically 'trump' immunity," observing that it was an analysis whichMOD(UK) affirmed.65 At [35] above.66 General Comment No 3 from the Committee against Torture states that the Committee considersthat the term 'redress' encompasses the concept of effective remedy: United Nations Committeeagainst Torture General comment No 3 (2012): Implementation of article 14 by States partiesCAT/C/GC/3 at [2].tribunals and other public institutions the effective protection ofwomen against any act of discrimination[.][67] As Mr Bates' submission stated:The nationalised right to an effective remedy for those claimants who allegedto have been harmed at a time they were subject to a State's jurisdiction (bethey 'extra-territorial' infringements of human rights under the legal or defacto authority and control test, or local ones) has come about because ofPost World [War] II treaties, which elevate the human rights of individualssuch as the CAT, ICCPR, CEDAW etc, and create precise reciprocalobligations on the States. These obligations, signed up to by all States,make it compellingly clear that New Zealand is obliged to supply an effectivedomestic remedy by inter alia, allowing access to a competent New Zealandauthority to hear and determine her case against the [MOD(UK)], as theobligation applies irrespective of who is ultimately responsible for the allegedviolations.[68] Notwithstanding the references to a nationalised right to an effective remedy,we did not understand Mr Bates to contend that the three treaties relied upon providedfor universal civil jurisdiction. In their discussion of that concept Fox and Webbobserve:67A number of multilateral conventions also impose an obligation requiringState parties to exercise universal jurisdiction in respect of specific offencesdefined in the convention and provide an obligation aut dedere aut judicare68where an alleged offender is within the territory of a State Party; forextradition to the State where the violation was committed or to the State ofthe offender's nationality, or for prosecution in the national court of the StateParty. A similar obligation has been claimed to exist in customaryinternational law where a State has granted asylum to a person present in itsterritory accused of the commission of grave international crimes.Universal jurisdiction has also potentially been restricted by the ICJ's rulingin the Jurisdictional Immunities case that the rules of State immunity areprocedural in character. This establishes that for any such new developmentto effect a removal of immunity of a foreign State in proceedings in a nationalcourt, the requirement of a jurisdictional link, which indeed was alreadyrequired in the Second Model in respect of proceedings relating to commercialtransactions.[69] The House of Lords made it clear in Jones that art 14 of the CAT does notprovide for universal civil jurisdiction.69 We do not consider that art 2 of either the67 Fox and Webb, above n 29, at 43–44.68 This translates as an obligation to extradite or to prosecute.69 Jones, above n 37, at [25].ICCPR or CEDAW are different from art 14 in that respect. In our view the decisionto refrain from contending for universal civil jurisdiction derived from these treatieswas appropriate.[70] Mr Bates' thoughtful argument combined two strands. The first was built onthe rationale of the Third Model of state immunity, namely immunity as a proceduralexclusionary plea, and the implications of treaty clauses which are expressed asproviding effective remedies.70 A second contention involved the proposition that theNew Zealand courts had jurisdiction in this case because of Ms Young's then status asa New Zealand naval officer.A procedural dimension of the right to a remedy[71] To appreciate the structure of the first strand of argument it will be useful torevisit the Germany v Italy and Jones decisions. In Germany v Italy the second prongof Italy's argument rested on the premise that there was a conflict between jus cogensrules forming part of the law of armed conflict and according immunity to Germany.71Since jus cogens rules were said to always prevail over any inconsistent rule ofinternational law, whether contained in a treaty or in customary international law, andsince the rule which accords state immunity before the courts of another state does nothave the status of jus cogens, then the rule of immunity must give way.[72] However the ICJ ruled that there was no conflict between the rules ofjus cogens and the rules of state immunity as they address different matters:72The rules of State immunity are procedural in character and are confined todetermining whether or not the courts of one State may exercise jurisdictionin respect of another State. They do not bear upon the question whether or notthe conduct in respect of which the proceedings are brought was lawful orunlawful.As Fox and Webb observed, that ruling had a broader reach than the ICJ's decision todismiss Italy's claim to war damage and reflected in some respects a general retreatfrom the expansive tendency of the Second Model.7370 Discussed above at [19]–[21].71 Germany v Italy, above n 21, at [92].72 At [93].73 Fox and Webb, above n 29, at 39.[73] Mr Bates' reply submission described the consequence in this way:74So, according to the ICJ, immunity is procedural and not a material defence.Therefore immunity bars a state from exercising its jurisdiction, but that doesnot affect the illegality of certain conduct in a substantive sense. The ICJ wenton to establish that under current international law, there exists no proceduralancillary rule to the jus cogens norms relied upon (slave labour, extra judicialkillings and crimes against humanity) demanding the revocation of stateimmunity. In other words, the purely substantive quality of jus cogensviolations under which no derogation is permissible does not collide with theprocedural rule of immunity. The two rules are 'passing ships in the night'.75[74] An argument similar to Italy's had been advanced by the claimants in Jones,namely that the prohibition of torture was a peremptory norm or jus cogens which tookprecedence over other rules of international law, including the rules of stateimmunity.76 Rejecting that contention Lord Hoffmann said:44. The jus cogens is the prohibition on torture. But the United Kingdom,in according state immunity to the Kingdom [of Saudi Arabia], is notproposing to torture anyone. Nor is the Kingdom, in claiming immunity,justifying the use of torture. It is objecting in limine to the jurisdiction of theEnglish court to decide whether it used torture or not. As Hazel Fox has said(The Law of State Immunity (2002), p 525):"State immunity is a procedural rule going to the jurisdiction of anational court. It does not go to substantive law; it does not contradicta prohibition contained in a jus cogens norm but merely diverts anybreach of it to a different method of settlement. Arguably, then, thereis no substantive content in the procedural plea of state immunity uponwhich a jus cogens mandate can bite."45. To produce a conflict with state immunity, it is therefore necessary toshow that the prohibition on torture has generated an ancillary procedural rulewhich, by way of exception to state immunity, entitles or perhaps requiresstates to assume civil jurisdiction over other states in cases in which torture isalleged. Such a rule may be desirable and, since international law changes,may have developed. But, contrary to the assertion of the minority inAl-Adsani, it is not entailed by the prohibition of torture.[75] Mr Bates sought to distinguish both Germany v Italy and Jones on the basisthat the right to an effective remedy upon which he relies incorporates not only asubstantive but also a procedural dimension. His reply submission expressed the pointin this way:7774 Underlining as in the written submission.75 Footnotes omitted.76 Jones, above n 37.77 Underlining as in the written submission.Therefore, unlike the hierarchical norms theory, there is a collision with theassertion of the common law procedural immunity principle. They are not'passing ships in the night', but in this case, there is a superior quality to theprocedural right to an effective remedy and [it] is not even "ancillary".[The MOD(UK)] cannot rely on the dismissal of the hierarchical normstheory, as it has [no] application at all, and is not relied upon by the Appellant.As both the procedural and substantive aspects to a right to an effectivenational remedy are absolute, or, alternatively the essence of theserights/obligations cannot be negatived or denied completely, the derogable ornon-absolute nature of the non-static procedural common law immunityprinciple must give way, and is 'trumped'. At the local level, translating thissubmission into domestic law, the Appellant points to a statutory orconstitutional right to an effective remedy from within the New Zealand legalsystem, which cannot be negatived by the common law.[76] The procedural/substantive distinction has proved a slippery one to apply.78As stated in Fayed v United Kingdom:79It is not always an easy matter to trace the dividing line between proceduraland substantive limitations of a given entitlement under domestic law. It maysometimes be no more than a question of legislative technique whether thelimitation is expressed in terms of the right or its remedy.[77] We recognise that the right to an effective remedy is considered to incorporatea procedural element.80 As Dinah Shelton observes:81The word 'remedies' contains two separate concepts, the first being proceduraland the second substantive. In the first sense, remedies are the processes bywhich arguable claims of human rights violations are heard and decided,whether by courts, administrative agencies or other competent bodies.The second notion of remedies refers to the outcome of the proceedings, therelief afforded the successful complainant.[78] However it does not follow in our view that the presence of a proceduralelement in the treaty articles in question has the effect of "trumping" the applicationof the state immunity doctrine. As James Crawford concluded with an eye toLord Hoffmann's dictum in Jones,82 unless the relevant prohibition develops toinclude an ancillary procedural rule requiring the assumption of civil jurisdiction,78 Fox and Webb, above n 29, at 45–46.79 Fayed v United Kingdom (1994) 18 EHRR 393 (ECHR) at 430.80 The Committee against Torture has stated that the obligations of States Parties to provide redressunder art 14 are two-fold, procedural and substantive: General comment No 3, above n 66, at [5].81 Dinah Shelton Remedies in International Human Rights Law (3rd ed, Oxford University Press,Oxford, 2015) at 16.82 At [74] above.state immunity remains unaffected.83 We do not consider that any of the treaty articlesrelied upon have that effect.[79] We prefer the view advanced by Mr Butler that the content of the ICCPR, CATand CEDAW does not remove the jurisdictional consequences of the doctrine ofstate immunity, where that doctrine properly applies. He argued that the reasoning inBenkharbouche v Embassy of the Republic of Sudan is applicable.84 The UnitedKingdom Supreme Court there considered the relationship between state immunityand the right to access justice under art 6 of the European Convention of Human Rightsand the right to an effective remedy under art 47 of the Charter of Fundamental Rightsof the European Union.[80] The Supreme Court stated:85International law is relevant to the operation of article 6 of the Human RightsConvention because, in accordance with article 31(3)(c) of the ViennaConvention on the Law of Treaties, the Human Rights Convention isinterpreted in the light of "any relevant rules of international law applicable inthe relations between the parties." It is therefore necessary to ask what is therelevant rule of international law by reference to which article 6 must beinterpreted. The relevant rule is that if the foreign state is immune then, as theInternational Court of Justice has confirmed in Jurisdictional Immunities ofthe State (Germany v Italy, Greece Intervening) [2012] ICJ Rep 99, the forumstate is not just entitled but bound to give effect to that immunity. If theforeign state is not immune, there is no relevant rule of international law at all.What justifies the denial of access to a court is the international law obligationof the forum state to give effect to a justified assertion of immunity.A claim to state immunity which is justified in international law, would be ananswer [both to a violation of article 6 of the Human Rights Convention andarticle 47 of European Union Charter of Fundamental Rights].[81] Mr Butler submitted that the same principle of interpretation (art 31(3)(c) ofthe Vienna Convention on the Law of Treaties) applies in respect of the interpretationof the treaties which Ms Young suggests give rise to the effective remedy obligation,including the ICCPR. In Sechremelis v Greece the Human Rights Committee held thatreliance upon state immunity to bar execution of a judgment obtained against Germany83 Crawford, above n 27, at 506.84 Benkharbouche, above n 26.85 At [34] and [78].by victims of Second World War atrocities was not a violation of arts 2(3) and 14 ofthe ICCPR.86[82] Hence the MOD(UK) contended that the High Court judgment does not, atinternational law, infringe any requirement to provide an effective remedy because thejudgment was based on the international obligation to give effect to a justifiedassertion of immunity.[83] The rejoinder of Mr Bates was that the reliance on Benkharbouche ismisplaced. He acknowledged that the procedural right of access to a court is capableof being limited by state immunity, noting that both Jones and Al-Adsani are examplesof the art 6 right yielding to state immunity. It was submitted that the Supreme Courtin Benkharbouche decided that the State Immunity Act 1978 (UK) was not areasonable restriction on the right to access a court and nor, axiomatically, on the rightto an effective remedy under art 47. He contended Benkharbouche was not authorityfor the proposition that under the ICCPR the right to an effective remedy is derogableor its essence may be negatived completely.[84] On this point it is necessary to return again to the majority opinion in Al-Adsaniwhich explained the qualifications on the right in art 6 for a person to have a claimrelating to the person's civil rights and obligations brought before a court:87The right of access to a court is not, however, absolute, but may be subject tolimitations; these are permitted by implication since the right of access by itsvery nature calls for regulation by the State. In this respect, the ContractingStates enjoy a certain margin of appreciation, although the final decision as tothe observance of the Convention's requirements rests with the Court. It mustbe satisfied that the limitations applied do not restrict or reduce the access leftto the individual in such a way or to such an extent that the very essence ofthe right is impaired. Furthermore, a limitation will not be compatible withArticle 6(1) if it does not pursue a legitimate aim and if there is no reasonablerelationship of proportionality between the means employed and the aimsought to be achieved.[85] Benkharbouche, which concerned claims by employees at the Libyan andSudanese embassies in London, is an example of an unjustified limitation.86 United Nations Human Rights Committee Views: Communication No 1507/2006CCPR/C/100/D/1507/2006 (25 October 2010) (Sechremelis v Greece).87 Al-Adsani v United Kingdom, above n 55, at [53].The Supreme Court there concluded that there was no basis in customary internationallaw for the application of state immunity in an employment context to acts of a privatelaw character. Hence s 4(2)(b) of the State Immunity Act was not justified by anybinding principle of international law and did not apply to the employees' claims.88Article 6 was engaged by the refusal of the Employment Tribunal to exercisejurisdiction on the ground of purported lack of jurisdiction over Libya and Sudan.[86] However the conclusion on the facts does not undermine MOD(UK)'scontention that Benkharbouche is authority for the proposition that a claim to stateimmunity which is justified in international law would be an answer to a claim of aviolation of art 47 of the European Charter. Article 47 provides, so far as relevant,that:Everyone whose rights and freedoms guaranteed by the law of the Union areviolated has the right to an effective remedy before a tribunal in compliancewith the conditions laid down in this Article.For all intents and purposes it is identical to art 2(3) of ICCPR. We consider thatSechremelis stands for the same proposition with direct reference to art 2(3). We rejectMr Bates' contention that the MOD(UK)'s reliance on Benkharbouche is misplaced.[87] To conclude on this issue, the authorities make clear that where the relevantoffending conduct occurs outside the forum state's territory, the forum state will nothave jurisdiction to entertain a civil claim for damages against a foreign state. It isapparent from the dictum in Benkharbouche that effective remedy provisions of thenature of art 47 as relied on by Ms Young cannot be invoked to require the forum stateto assume jurisdiction.89 This leads to a consideration of Ms Young's second strand ofargument which focuses on the jurisdiction of the New Zealand state.88 Although s 4(1) provided that a state was not immune as respects proceedings relating to a contractof employment made between the state and an individual where the contract was made in theUnited Kingdom or the work was to be wholly or partly performed there, s 4(2)(b) stated that s 4did not apply if at the time the contract was made the individual was neither a national of theUnited Kingdom nor habitually resident there. See [64]–[67] of Benkharbouche, above n 26.89 See [80] above.The extended jurisdiction argument[88] Woven through Mr Bates' treaty-based submission was an argument whichturned on the point that, when the wrongful conduct occurred in England, Ms Youngwas subject to the de facto and de jure control of the New Zealand state.90 While thisargument echoed the submission advanced in the NZBORA context,91 Mr Batesconfirmed that, if the NZBORA argument failed, the extended jurisdiction submissionwas advanced independently at New Zealand common law, presumably as informedby international law.[89] Mr Bates developed the argument by contrasting the circumstances ofMr Al-Adsani and Mr Jones with those of Ms Young. The significance of theAl-Adsani decision arises from the difference in approach of the United Kingdomcourts and the ECtHR. Unlike the United Kingdom position, reflected in the dictumof Lord Millett,92 that the forum court's decision to uphold state immunity does notengage art 6 of the European Convention at all, the ECtHR does embark on the inquirywhether a violation of art 6 is established.93 Having done so in Al-Adsani, the majorityarrived at the same ultimate conclusion as Jones, but by the reasoning process that,because the jus cogens violation was caused outside the jurisdiction ofthe United Kingdom court, there was an absence of jurisdiction conferred uponthe United Kingdom court to proceed with the hearing.[90] Mr Bates submitted the critical distinction between the present case andAl-Adsani and Jones was the fact that, when Ms Young travelled abroad as aNew Zealand service person, she remained subject to New Zealand's jurisdiction.He suggested that had Mr Al-Adsani or Mr Jones been a member of theUnited Kingdom armed services when the relevant conduct occurred in Kuwait andSaudi Arabia respectively, then the United Kingdom could well have been obliged toprovide them with an effective remedy because at the time of the conduct they wouldhave been within the jurisdiction of the United Kingdom.90 See [3] above.91 See [42] above.92 See [25] above.93 The distinction is discussed in Benkharbouche, above n 26, at [30].[91] The flaw in this argument is that it confuses the concept of a state's control (orjurisdiction) over service personnel with the concept of the territorial reach (orjurisdiction) of the state. The point which the ECtHR made in Al-Adsani was that thealleged torture of Mr Al-Adsani took place beyond the territorial reach ofthe United Kingdom in the territory of another state. The United Kingdom courtwould have no jurisdiction to entertain a claim against the state of Kuwait whether ornot Mr Al-Adsani was a United Kingdom citizen.[92] The fact that the victim of offending in a foreign state is not only a citizen ofbut also a person in the military service of the forum state does not alter the fact thatthe conduct occurred beyond the forum state's territorial jurisdiction. The forum statemay indeed exercise control over and owe obligations to its service personnel whilethey are on service abroad. However the forum state does not have power or domainover the wrongdoers and, if they are officers of the foreign state, the foreign state itself.[93] There was a suggestion in Mr Bates' submissions that the treaty provisions inquestion justified a different conclusion. For example it was said:The CEDAW 1979 has also expressly dealt with the issue on sexualharassment and violence in the workplace and the rights and obligationscreated under that Convention are similarly engaged in this case, againbecause [Ms Young] was subject to New Zealand's jurisdiction at the materialtime of the alleged harm. The [State's] full "due diligence" obligationsincluding the obligation to supply an effective domestic remedy are engagedin consequence and apply extra-territorially if the jurisdiction test is met underthe power and control test and irrespective of who is responsible for theviolation.[94] Such contentions, which reflect the same flaw of reasoning explained above,must also fail.Should the Court dismiss the protest to jurisdiction by the MOD(UK) on thegrounds that the alleged wrongdoing breached a fundamental principle of justiceor some deep-rooted tradition of New Zealand which engages an iniquityexception to the state immunity doctrine?[95] Although the recognition of an iniquity exception to the state immunitydoctrine was Ms Young's primary argument in the High Court, that contention did nothave prominence in the argument before us. Consequently we address it relativelybriefly.[96] As Simon France J recognised, the crux of Ms Young's contention was foundedon dicta in the judgment of Richardson J in Controller and Auditor General vDavison.94 The central question in that case was whether New Zealand law mightdeny sovereign immunity status in respect of documents held by the Audit Office inNew Zealand as auditor of the Cook Islands accounts under the constitution of theCook Islands on the ground that the Cook Islands government was arguably party totransactions designed to abuse the tax system of New Zealand.[97] In the High Court Mr Bates emphasised first the ability of the forum state(New Zealand) to decide whether to recognise state immunity in a particular case andsecondly that such a decision is driven by public policy considerations.95 Withreference to the latter Richardson J commented:96 the public policy argument for requiring production by the Audit Office ofthe specified documents can be put very shortly. It is not a matter of the forumstate simply preferring public policies underlying its domestic laws to thoseof the foreign state. Fundamental values must be at stake. Where the conductof the foreign state is in question, refusal of a claim to sovereign immunitycould be justified only where the impugned activity, if established, breaches afundamental principle of justice or some deep-rooted tradition of the forumstate.[98] Observations concerning the recognition of a possible iniquity exception wereobiter in Davison because the majority of the Court determined the case on anorthodox application of the state immunity doctrine in finding that it did not apply tothe commercial activities of the Cook Islands Government. As Simon France J noted,there was a range of views on whether a broad principle of iniquity as affecting thetraditional concept of sovereign immunity should be accepted. Henry J in Davisondescribed it as debatable.9794 Controller and Auditor General v Davison, above n 16.95 High Court judgment, above n 1, at [35].96 At 305.97 At 309.[99] The view against recognition was advanced by Cooke P who considered thatin the present era of civilisation and international law a court would be going too farif it were to allow a general exception of iniquity to the doctrine of sovereignimmunity. He stated:98One can speculate that the law may gradually but steadily develop, perhapsfirst excepting from sovereign immunity atrocities or the use of weapons ofmass destruction, perhaps ultimately going on to except acts of war notauthorised by the United Nations. But this is [to] peer optimistically into thefuture far beyond the bounds of anything falling to be decided in the presentjudicial review proceedings. The maxim festina lente is in point, and whilefounding on public interest I prefer to confine the reasoning in this judgmentto issues of tax avoidance or evasion under investigation by a nationalcommission of inquiry.[100] The development of the law of state immunity in the manner anticipated inDavison has not eventuated. Indeed, as Mr Martin for the AGNZ submitted, theforeshadowed exception has since been rejected by the House of Lords,99 the HighCourt of New Zealand100 and the ICJ.101[101] We consider that Simon France J was correct to conclude that there is atcommon law no recognised exception to state immunity for allegations of breaches offundamental human rights and that Davison does not empower the recognition of suchan exception.102Are the courts of England and Wales or is the High Court of New Zealand themore appropriate forum for Ms Young's claim against the MOD(UK)?[102] Issues of forum non conveniens do not arise unless there are competing courts,each of which has jurisdiction (in the strict sense) to deal with the subject matter ofthe dispute. As Lord Scott of Foscote explained in Tehrani v Secretary of State for theHome Department, if one of the two competing courts lacks jurisdiction (in the strictsense) a plea of forum non conveniens could never be a bar to the exercise by the other98 At 290.99 Jones, above n 37.100 Fang v Jiang [2007] NZAR 420 (HC).101 Germany v Italy, above n 21.102 High Court judgment, above n 1, at [47].court of its jurisdiction.103 Hence our consideration of this issue necessarily proceedson an assumption that our conclusions on the prior issues are erroneous.[103] No issue is taken with the applicable principles recognised and applied bySimon France J. Nor was it suggested that any relevant consideration had beenoverlooked. Rather, the emphasis in Mr Bates' submissions on appeal is thatNew Zealand is the appropriate forum for the entirety of Ms Young's litigation againstboth the AGNZ and the MOD(UK) and those circumstances warrant an assumption ofjurisdiction in respect of the latter.[104] Mr Bates argued that, as the High Court is already investigating events in theUnited Kingdom in connection with the case against New Zealand for negligencewithout offending comity, it is unreasonable and unfair to separate the case against theMOD(UK) for hearing and determination in a different court. He submitted thatMs Young would be extremely disadvantaged in the task of demonstrating the extentto which each state discharged its negative or positive obligations to provide to her aplace of work free from degrading treatment, gender discrimination and torture, andthe appropriate share of liability to each state for local damage, if the case had to besplit between two different jurisdictions, even assuming she could afford to do so.He observed that it could also give rise to the prospect of conflicting rulings on factand law.[105] Justice Simon France recognised the validity of both the expense and dualityof proceedings factors.104 With reference to the former he noted that, as was her right,Ms Young had chosen not to avail herself of opportunities to alleviate the difficulties.The Royal Navy had referred the matter to the Royal Navy Police who were willingto investigate if Ms Young wished to make a complaint but she declined to do so.[106] So far as the implications of dual proceedings in different jurisdictions wereconcerned, the Judge did not consider that in the circumstances Ms Young's decisionto sue the AGNZ in relation to the overseas events was sufficient to overcome what he103 Tehrani v Secretary of State for the Home Department [2006] UKHL 47, [2007] 1 AC 521 at [67].104 See [11] above.regarded as the otherwise overwhelming conclusion that the Courts of England andWales were the appropriate forum for the claims against the MOD(UK).[107] We agree with his conclusion based on the five factors he identified, inparticular the non-compellability of relevant witnesses who reside in theUnited Kingdom.105 They could not be compelled to give evidence in New Zealandbecause the prohibition on compulsion of Crown officers or servants in s 9(4) of theEvidence (Proceedings in Other Jurisdictions) Act 1975 (UK) applies.[108] Although it was not a factor which weighed in the High Court's considerationof the forum conveniens issue, we consider it appropriate to note that the AGNZproposed a hybrid process whereby the New Zealand proceedings would be stayedpending determination of issues in the courts of England and Wales and the AGNZwould accept service and waive sovereign immunity in the United Kingdom. In ourview that proposal would significantly reduce the disadvantage associated with twoproceedings in different jurisdictions. However it is not an available option because,as the Judge noted, Ms Young made it plain she would only proceed againstthe United Kingdom Government if she was able to do so in the courts ofNew Zealand.Result[109] The appeal is dismissed.[110] The appellant must pay the second respondent costs for a standard appeal on aband A basis and usual disbursements.Solicitors:Brown & Bates Ltd, Napier for AppellantCrown Law Office, Wellington for First RespondentRussell McVeagh, Wellington for Second Respondent105 High Court judgment, above n 1, at [55].