Framework for Navigating Normative Variations

In moving from theory to practice, it may be most fruitful to take a step back from the various abstract and, at times, esoteric discussions of legal pluralists – a discussion based in legal anthropology – and step into the shoes of the practicing lawyer. The realities she faces day-to-day shed light on the task of navigating through competing normative realities. The writing of Professor Singer, in this regard, is particularly insightful:

Many philosophers seek theories that dissolve incommensurabilities by appealing to higher order norms or metatheories that provide rational priorities among competing values. Lawyers and judges and law makers, on the other hand, are rarely beguiled by monistic theories. We make utilitarian arguments; we talk about rights, justice, fairness; we are concerned to define the appropriate institutional role for judges in a free and democratic society; we tell the story; we resort to process to solve substantive problems. Moreover, we are skeptical about the ability of rigid priority rules to determine just outcomes in specific cases. In short, we use multiple normative strategies, unashamed that we are unable to find killer arguments that put all normative controversies to bed or that we are borrowing from warring traditions.[1] [emphasis added]

Singer’s comments provide an enlightening (albeit contestable) suggestion that in the seeking of a solution to a legal dilemma, the use of “multiple normative strategies”, – strategies that may even create inconsistencies from problem to problem – can provide meaningful solutions.

A country’s constitution (whether written or unwritten) can open the door to a spectrum of normative interpretations. The role of any given constitution is to assert broadly defined values which extend over a diverse people within a region. These constitutional principles are normally consistent with a broad notion of human rights; thus, they encapsulate what can be viewed as the “fundamental rights” of the individuals which they extend over. However, contrary to conventional conceptions of constitutionality, a constitution does not necessarily entail that these principles are reached in one particular way.[2] For purpose of this discussion, it suffices to focus on chthonic law and state law, since elements of these two systems are often viewed as being at odds and since the Shari’a overlaps with both sets of laws.[3]

An examination of the 2004 Constitution of Afghanistan reveals how the country seeks to confer certain broadly defined fundamental rights on all its citizens.[4] The Constitution specifically includes the right to liberty, the presumption of innocence, the right to form social organization, the right to legal defense if accused of an offense under the law, and freedom of expression. The attainment of these fundamental rights can be consistent with a pluralistic conception of the law. Fundamental rights can be attained not only through state legal mechanisms but also through chthonic legal mechanisms. It is certainly arguable that the jirga/shura institution, which implements chthonic law, is just as able as state courts to implement justice in a manner that fulfills the ultimate attainment of justice to the individual. This approach to the fulfillment of constitutional principles through chthonic laws raises other questions. In the attainment of fundamental rights, how should a choice of law rule be implemented when substantive chthonic and state laws come into conflict? In what instances should courts be reviewing decisions of the jirga/shura institution, and what should be the standard of review? Finally, in what instances can one derogate from fundamental rights and to what extent?

Scenario – Murder case before a Jirga/Shura

Consider the scenario where a jirga/shura dealing with a murder case may lead to a decision to reconcile the parties through the practice of bad, which entails the swapping of brides. In such instances, though community justice may be fulfilled, the ruling may be abhorrent to fundamental justice as provided by the Constitution and understood under state law. The practice of bride swapping infringes on the well-being of some Afghan citizens, namely the females being implicated, and thus the state has an interest in protecting its citizens according to its notion of justice.[5] Legal pluralism will inevitably result in such legal quagmires where the rule of law based on one set of normative laws will directly be in conflict with the rule of law based on another set of normative laws.[6]

The approach of Singer may provide some instruction in dealing with such situations. A fixed set of a priori rules will not be able to deal with such a normative clash. Rather the judge or party weighing the interests of various normative laws must use “multiple normative strategies”. He must judge between apples and oranges  – he must analyze the extent to which a decision is consistent with one set of legal norms, as opposed to the extent to which the decision is abhorrent to an alternate set of legal norms. As well, he must take into consideration other factors, such as considering other legal norms that may claim authority – for example the Shari’a and international human rights norms – all of which he must factor into his final ruling. The judge must undertake his analysis on a case-by-case basis since much will revolve around the facts. In addition, the judge must be well versed in multiple sources of law, or minimally be ready to embark upon exploration of various normative legal norms, in trying to balance between the norms. Indeed, in case which involves two or more constitutional principles, a judge may be required to weigh fundamental rights against one another.

This scenario raises another important issue in the overall administration of justice: how should it be decided that a jirga/shura decision be reviewed by a state court? The jirga/shura institution and state courts already exhibit a level dynamic interplay between the two legal orders – a mixture of cooperation and tension. On the one hand, state courts already refer cases (including criminal murder cases)[7] back to the community level, limiting its own authority in favour of that of chthonic system. In this manner, the state system indirectly gains esteem in the eyes of rural Afghans through its cooperation with the chthonic system. On the other hand, in certain cases, the state system may seek to assert this strengthened authority by bringing in select cases of jirga/shura decisions before the court.

There need not exist a blanket policy concerning specific categories of cases that should always come before the state courts.[8] Rather, the state can proceed by identifying certain broad categories of cases that it feels “may” lead to a potential clash of normative legal orders – areas such as women’s rights cases and criminal cases – and monitor the activities of jirga/shura decisions in these areas.[9] A state actor would only raise a concern if it felt that a fundamental right (according to the state’s conception of justice) embodied by the Constitution was not being adhered to, causing a clash of normative values (in the manner analogous to scenario two, mentioned above).

Establishing a functional/functioning legal system in Afghanistan will take many years. Doing justice to this slow process requires that all conceptual postulates be brought to the table – with full knowledge that many will only be considered, studied, and retired.

[The entry draws extensively from a research paper entitled Re-conceptualizing Legal Pluralism in Afghanistan, written under the guidance of Professor Megret]

[2] C Himonga and R Manjoo” What’s in a Name?” in Manfred O. Hinz, ed., The Shade of New Leaves – Governance in Traditional Authority: A South African Perspective (Berlin: Lit Verlag, 2006) 29 at 329.

[3] Looking at these legal systems without focusing on the Shari’a facilitates a simplified discussion at this juncture. However, it certainly may be desirable to keep all three legal systems separate if one were to undertake a fully exhaustive exploration of the various interactions between the three systems.

[4] Constitution of Afghanistan 2004, trans. by Yahya Wardak (Kabul, Afghanistan: Shah M Book Co, 2004). Chapter 2 of the Constitution deals with fundamental rights.

[5] An even more complicated example would arise the female did not contest (or even tacitly approved) begin “bride swapped”.

[6] Gordon R. Woodman, “Legal Pluralism and the Search for Justice” (1996) 40 J. African L. 152 at 160.

[7] USAID, “Afghanistan Rule of Law Project” A publication for the United States Agency for International Development (2005) at 11.

[8] This suggest is contrary to the opinion of various organizations that work in Afghanistan, such as the USIP and the Norwegian Refugee Council, who both assert that all serious criminal cases, such as murder, must be dealt with at the state level, without exception.

[9] Wardak provides more some pragmatic suggestions on how such monitoring could be set up. See Ali Wardak, “Building a Post-War Justice System in Afghanistan” (2004) 41 Crime, L. & Social Change 319.

But before heading Stateside, I will mention some private international law instruments on this topic.

The Hague Conference on Private International Law has completed the Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Maintenance. However, with only two signatories (the U.S. and Burkina Faso) and no ratification, this convention has not entered into force.

Nor do previous instruments offer much help. The predecessor 1973 Hague Conventions on the topic garnered relatively meager support. Some reciprocal agreements exist between the U.S. or U.S. states and other countries, but careful analysis reveals little uniformity among these agreements.

Thus, private international law agreements do not—yet—provide much clear help on this subject.

So in the U.S., domestic courts play the leading role, and the first issue in the domestic courts will be recognition. For those readers yearning for the “good old” private international law days, we now turn to the familiar subjects of comity and jurisdiction-specific law.

Based on comity, U.S. courts may recognize foreign maintenance orders. Comity—very generally—is a largely judicial doctrine whereby foreign court orders were obtained through proceedings in a foreign state that do not offend a strong public policy of the recognizing state. Courts have relatively broad discretion considering comity. Though comity permits recognition in most cases, some uncertainty remains on this path to recognition.

Statutory provisions provide another path to recognition. For example, North Carolina has enacted the North Carolina Foreign Money Judgment Recognition Act in concert with the , which affords a plaintiff a statutory recognition procedure.

A more common statutory framework for recognition is the Uniform Interstate Family Support Act. All states have adopted a version of UIFSA, and foreign court orders from recognized States—“foreign reciprocating countries”—enjoy streamlined recognition under UIFSA.

The Secretary of State of the U.S. can denote foreign reciprocating countries at the national level. Alternatively, some state Attorneys General will acknowledge other foreign reciprocating countries at the state level. So, if a country is recognized as such, then recognition is quite straightforward. Otherwise, an obligee must rely on comity for recognition.

After determining that the order is recognizable, the U.S. domestic court must then ascertain whether personal jurisdiction existed over the defendant in the foreign court.

For some courts, this determination begins by examining jurisdiction under the laws of the foreign country. This will not however suffice—the foreign court must also have had personal jurisdiction under U.S. standards by showing statutory and constitutional authority.

Personal jurisdiction is relatively broad under UIFSA’s “long-arm” jurisdictional provisions at section 201. This statutory authority is necessary—but not sufficient—to find personal jurisdiction.

Rather, the obligee must also show that the previous court had constitutional authority to exercise personal jurisdiction.

In the vaguest terms, the U.S. Constitution requires a party to have purposeful minimum contacts in the forum whereby the exercise of personal jurisdiction comports with the notions of fair play and substantial justice. For a more thorough definition of this concept, please spend three weeks shivering through a 1L Civil Procedure course.

Once the obligee establishes that jurisdiction existed in the foreign court, then—assuming that the domestic court has jurisdiction over the obligor—, the court will most likely enforce the order. Additionally, the obligee can in theory obtain legal advice and assistance on these matters at no cost.

Of course in reality, the procedural and substantive legal subtleties in each jurisdiction will require competent and experienced legal counsel for these types of actions. Further—as you can probably tell—, this overgeneralization of the enforcement procedure obscures the potential technical difficulties (e.g., conflicting orders, modifications, two-state proceedings) that parties and attorneys face.

For that reason, the recent Hague Convention on this subject offers a welcome tool that could streamline this area of international family law.

Considering the substantial sums that obligees can recover, the obligor’s moral duty to support children, and the overall best interests of children, countries should sign and ratify this Convention. Moreover, with increasing international mobility, the need for coherent legal mechanisms will only increase. Currently though, these pressing needs face a patchwork of confusing paths to recognition and enforcement.

Rather than leaving parties and their counsel to muddle through this minefield, States should subscribe to a uniform and autonomous framework for enforcing matrimonial judgments. Alas however, the initial lack of international support on the recent Hague Convention may for some time spell continued confusion on this complex and pressing legal problem.

a.  Habitual Residence in the ECJ

The ECJ has endorsed a fact-based habitual residence test for cases under BIIbis in one decision so far.  The case, A (C-523/07), involved a parental responsibility dispute between a mother and a public child welfare agency.  Three children who lived with their mother and stepfather in Sweden since 2001 traveled as a family to Finland in the summer of 2005 to spend their summer holiday.  While still in Finland in October 2005, they applied for public housing.

In November, a local welfare agency removed the children to a childcare unit.  The mother unsuccessfully challenged this action in a Finnish court.  On appeal, a Finnish appellate court submitted four questions to the ECJ.
In the central question, the Finnish asked how to determine the children’s habitual residence, considering their peripatetic lifestyle in Finland.  The Advocate General’s (“AG”) opinion framed the issue with the need for a precise definition of habitual residence in light of the spirit and purpose of BIIbis and the best interests of the child.  Distinguishing between presence and habitual residence, the AG turned to other private international law treaties because of their importance in interpreting and providing uniform interpretation on this issue.

Following the ECJ’s decision in Rinau,  the AG looked to the Hague Abduction Convention’ guiding principles.  Thus, the AG considered habitual residence “by reference to all the relevant circumstances…distinguished from the legalistic concept of domicile.”

In embracing that definition, the AG parted from the Commission’s suggested definition.   The Commission, relying on the Borras Report, specified factors including intention, relevant facts, and actual residence.  Ultimately, the AG rejected intent, standing alone, as a determinant of habitual residence.

The AG posited that intent may have been important in determining habitual residence for simple divorce cases, which BIIR addressed.  However, intent is less important in BIIbis parental responsibility cases—when determining a child’s habitual residence, children often lack intent and parents’ intentions conflict.  Thus, the AG rejected the habitual residence definition in divorce law and, for that matter, social law because of those laws’ differing aims.

In applying a fact-based test based test, the AG paid particular attention to the “duration and regularity of residence” and the “child’s familial and social integration.”

First dealing with duration and regularity of residence, the AG rejected any strict time limit.  In the case, the durational relevance related to the children’s ages and their familial and social circumstances.  While habitual residence tolerates interruptions, children lose a previous habitual residence when “a return to the original place of residence is not foreseeable.”

Further, the AG noted that habitual residence can shift quickly, as evidenced by the three-month period of continuing jurisdiction in BIIbis Article 8.  Parents’ common intentions can play a role in assessing the regularity of the residence—but only when manifested towards the child’s integration—e.g., by enrolling the child in school, leasing or purchasing property, or changing an address.  This was how the AG defined the duration and regularity of the residence.

Second, the AG examined factors surrounding a child’s familial and social integration.  These factors can vary with the child’s age, but contact with relatives, “school, friends, leisure activities and, above all, command of language are important.”  Considering these factors, courts must determine whether a habitual residence exists.

The ECJ decision largely adopted the AG’s opinion regarding the need for uniform and autonomous interpretations, the unique definition of habitual residence in parental responsibility cases, and the factors to consider in determining habitual residence.  Instead of focusing on intent or the “centre of interests,” the court held that:

the concept of ‘habitual residence’ under Article 8(1) of the Regulation must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, in particular the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family’s move to that State, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State must be taken into consideration. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances specific to each individual case.

Thus, the ECJ named roughly eight factors to consider when determining habitual residence: (1) duration, (2) regularity, (3) conditions, (4) reasons for the child’s presence, (5) school attendance, (6) linguistic knowledge, (7) family relationships, and (8) social relationships.  With those factors in mind, the ECJ returned the case to the national court.

Unfortunately, the ECJ did not exactly express the habitual residence determination by enumerating those clear factors.  Instead, a looser focus on “all the circumstances specific to each individual case” dilutes the possibility for uniform interpretation among Member States’ courts.  Soon, two examples in UK appellate courts would show habitual residence’s slipperiness.

b.    Habitual residence acquired after less than two interrupted months in England

In S(A Child), a court acknowledged—but did not effectively apply—the ECJ’s habitual residence determining factors.   In that case, a Belgian father argued that his child was not habitually resident in England.  He and the Australian mother had a daughter in December 2005 in Australia, who spent most of her life in a small Belgian village with her parents, near her grandmother.  In February 2007, the father signed a three-year lease in that Belgian village.

In March 2007, the father took a three-month job in Belfast.  A month later, the mother and child followed, staying in an apartment that his employer provided there.  In May 2007, the mother and child returned to Belgium.  The father took a two-year job in London, where, for six weeks, he stayed with a friend during the week and travelled to Belgium on the weekends.

Then, the father’s friend in England secured a projected three to nine-month job in Canada.  So, the friend offered his England home for the family’s use.  In August 2007, the family moved in but left most of their possessions in Belgium.  Then, the daughter spent two weeks with her grandmother in Belgium in September.  Unfortunately, the friend’s job in Canada fell through, and the family had to give up their English digs by the end of September.

At this time, the marriage fell apart.  The parents had differing plans for their daughter: the mother pictured her life in Australia; the father took the child to Belgium on September 28.

On appeal, the appellate judge repeatedly emphasized the indeterminate time—three to nine months—that the family planned to spend at the borrowed home in England, despite the primary home in Belgium.  The judge opined that the “constancy of that primary home [did] not prevent the acquisition of habitual residence in the work country if the other elements within the defined principles of acquisition [were] satisfied.”  The court reviewed “the facts as the [trial] judge found them,” and “whether it was open to her to conclude that those facts were sufficient to satisfy the tests set out in the authorities.”  The appellate judge then upheld the decision that, in six interrupted weeks, the young child had acquired habitual residence in England.

In reaching that conclusion, the appellate judge accepted the father’s “very substantial” legal connection with England because of his employment, tax contributions, and work permits.  The appellate judge accepted the lower court’s emphasis on the parties’ intention to remain in England for three to nine months.

The appellate court’s reasoning was troubling in light of C-523/07, because those connections and intent had little to do with the child’s actual integration in England.  The appellate court relied heavily on the trial court’s balancing, but the trial decision came down before the ECJ clarified the autonomous habitual residence test.  Considering the eight factors above, the child’s habitual residence had not likely shifted to England.

The duration was quite short—certainly less than two months.  The regularity was also lacking as the child had spent two weeks with her grandmother in Belgium during her time in England. The conditions of the residence were undeniably temporary.  The reason for the child’s presence was simply to share a rent-free home with both parents.

Further, no indication of school attendance or linguistic knowledge arose in the courts’ opinions—factors explicitly required when following the ECJ analysis.  Finally, the child’s family and social relationships were seemingly limited in England.  Her father and mother were living in England temporarily and her grandmother—who she spent a quarter of her “residence” in England with—was in Belgium.  Therefore, this case’s reasoning strays from a narrow construction of the ECJ test.
b.    Habitual residence not acquired after one year in Wales

In another 2009 case, P-J (Children), a Spanish father sought a return when his Welsh wife removed their children from Spain to Wales.   Initially the mother had taken the children from Spain to Wales to live with their grandparents and go to school in Wales for a year, with the father’s consent.  After that year, the mother and children returned to Spain and enrolled in school.  About two months later, the mother left with the children without the father’s consent.

At issue in the appellate court was the children’s habitual residence.  The mother argued the first move established Wales as the children’s habitual residence.  Lord Justice Ward agreed that “acquiring habitual [residence] … permits a stay of comparatively short time [whereas] domicile … requires an intention to remain [] indefinitely.”

However, Lord Justice Ward recalled that “[h]abitual residence of young children of married parents all living together as a family is the same as the habitual residence of the parents themselves and neither parent can change it without the express or tacit consent of the other or an order of the court.”  Without setting a fixed period, habitual residence “depends ‘more upon the evidence of matters susceptible of objective proof than upon evidence as to state of mind.’”

Applying this definition, the court decided that the children’s habitual residence was Spain.  Lord Justice Ward concluded that their:

ordered way of life was Spanish. Their education had been undertaken there and with the mother’s collaboration it was arranged that it should continue in Spain upon their return. Their schooling in Wales was for a temporary period and for the limited purpose of improving their English. Their home was in Spain, not with their grandparents in Wales. The visit to Wales was a convenient respite to meet the dual objectives of increasing their language skills and refurbishing the Spanish home. The mother actively participated in the planning of the work even whilst she was in Wales. The essential dental work was carried out in Spain…. [The f]amily life was centred on Spain, which is simply another way of saying Spain was the regular order of their life.

The court thus concluded—based on UK case law—that the habitual residence was Spain.

However, that conclusion does not comport to the ECJ factors in C-523/07.  By ignoring whether the children re-established their Spanish habitual residence, the appellate court too quickly dismissed the potential habitual residence in Wales.

After all, their presence in Wales was for a substantial duration and regularity—an entire year.  They stayed at their grandparents’ home with the father’s consent.  Their purpose was to acquire English language skills and attend school—two explicit factors that contribute to integration. The children developed relationships with their grandparents and social relationships with their classmates.  Thus, under a narrow reading of C-523/07, the children acquired habitual residence in Wales.

These two UK cases demonstrate the problems that arise from clinging to the fact-based habitual residence test.  Even with an ECJ decision on this matter, parents still face great uncertainty in parental responsibility cases before EU Member States’ national courts.

One of the most “private” areas of private international law is international family law (which is, oddly enough, my focus area—see, e.g., my blog).  Just this month, the United States Supreme Court heard a case involving a major private international family law convention, the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

The Convention’s name tends to confuse some lay readers—it only deals with jurisdiction in cross-border custody disputes, not the more sinister cases that the words “child abduction” connote.  The Convention primarily preserves jurisdiction in child custody disputes by providing an immediate return if a parent wrongfully removes a child from its country of habitual residence.

The father in the case before the U.S. Supreme Court, Abbott v. Abbott, contended that the mother wrongfully removed their child from Chile.  The cases focuses on the ne exeat issue under the Convention.

Courts use ne exeat orders to preserve jurisdiction in custody disputes by forbidding a custodial parent from taking a child outside of a court’s jurisdiction without the express consent of the other parent or the court.  However, ne exeat orders have an uncertain status under the Hague Convention.

Article 3 of the Hague Convention defines a wrongful removal as a removal “in breach of rights of custody attributed to a person.”  Article 5 further defines rights of custody as “rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.”  Under these provisions, to get a return, a petitioner must show that he had rights of custody.  The question is whether a ne exeat order, standing alone, creates rights of custody under the Convention.

This issue lacks international consensus.  For example, the Supreme Court of Canada has mentioned the issue twice (in Thomson v. Thomson and W.(V.) v. S.(D.)) and, in dicta, concluded that a ne exeat order does not confer custody rights.  The House of Lords in England (in C. v. C) and the Supreme Court of Israel (in Foxman v. Foxman) have decided it the other way.  Australia’s high court has one decision that meekly followed the English precedent.  France has decided it both ways, the European Court of Human Rights has dodged the issue, and the Austrians sided with the Canadian Supreme Court’s dicta.

In the U.S., a split in the Circuits led to the Supreme Court’s grant of certiorari.

The ne exeat issue is important for three major reasons: general treaty interpretation, the weight afforded to foreign court decisions, and its practical impacts on individuals.

First, the case brings into focus the issue of multilateral treaty interpretation.  Of course, the Vienna Convention on the Law of Treaties (VCLT) codified the customary international law of treaty interpretation.  However, this case pokes at the gaping holes in that codification. How should the Court interpret the Hague Convention’s relatively concrete definition?  How should courts find the ordinary meaning of the “terms of the treaty in their context and in the light of its object and purpose” (VCLT, art. 31)?  Do they look only at the text and travaux preparatoires?  Should the court consider the Department of Justice’s present interpretation, or should it rely only on the interpretations provided at the time of signing?  And does the “subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation” include foreign domestic court decisions?

Second, the weight afforded to foreign domestic courts decisions comes front and center in this case.  The Hague Convention relies on autonomous definitions of its terms to ensure proper jurisdiction for cross-border custody cases.  This is to protect the left-behind parents from having the merits of their cases played out in removing parents’ foreign courts of choice.  However, to achieve a uniform definition of “rights of custody,” courts that have struggled with the ne exeat issue have invariably looked to the domestic case law of sister signatories to define the term.

This practice potentially creates some real problems in multilateral treaty negotiations.  Initially, signatories may be even more skeptical if subsequent judicial action can modify the terms on which they originally agree.  Further, this may incentivize a “rush to the courthouse” between signatories because, after all, once domestic courts rule on an issue, then their rulings can affect international jurisprudence.

Despite the potential blur in separation of powers, the normally conservative Justice Scalia, who has previously lambasted fellow Justices for relying on international law (see, e.g., Roper v. Simmons; but cf. Chan v. Korean Airlines where Justice Scalia cites French court decisions in treaty language interpretation), was the first Justice to bring up foreign case law in oral argument.  He seemed to posit that if:

the purpose of a treaty is to have everybody doing the same thing, and—and I think, we—if it’s a case of some ambiguity, we should try to go along with what seems to be the consensus in—in other countries that are signatories to the treaty

Further, if the U.S. Supreme Court weighs in with the international “majority” (whose existence is questionable), this may only strengthen the international “precedence” to play “follow-the-leader” in an area of case law that has broad impacts on individuals.

Finally, the ne exeat issue’s resolution will likely have real effects on real people.  In many countries’ domestic legislation, an automatic ne exeat clause exists in all custody statutes.  Thus, for many parents with sole custody, the non-custodial parent may effectively have the power to keep an ex-spouse in country with the threat of an immediate return.

Moreover, how far would this “right” extend?  For example, would laws requiring both parents’ consent for a child’s passport count as a right of custody?  Does a custody agreement, which limits a custodial parent from residing with a particular individual, “determine residence”?  If the custodial spouse is a domestic abuse victim, does she have to risk her life by obtaining her abuser’s consent before she moves to a new country to pursue her life goals?

As ever, we are for now only guided by these questions.  Soon enough, the courts in the United States will have the answer to the narrow ne exeat question, yet others regarding the Hague Convention will remain unanswered.

Thus, the subject of my next Legal Frontiers entry will be why countries should adopt the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, and Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children.

The main problem with bringing this action in Québec is that its connection to Québec is extremely weak. Pursuant to article 3134 of the CCQ, the court took jurisdiction over the action because it found that the defendants were domiciled in Québec (Bil’in, para. 207). While the fact that the defendant has its domicile in Québec might normally be determinative in establishing jurisdiction, such a factor should be inconclusive in this instance. As Cullen himself later points out

this lone and apparent connection is merely superficial: the Corporations have no assets in Québec, are alter egos for another corporation which itself has no assets in Québec and Defendant Laroche [the current director] has no personal involvement in the Bil’in project … (para. 312)

The defendant corporations were only incorporated in Québec for tax reasons (para. 215). It is highly questionable to use the place of a legal person’s incorporation as the sole basis of asserting jurisdiction over an extra-contractual liability action that occurred entirely outside of Québec – especially if that corporation has no offices in Québec and does not carry out any activities there. Alas, article 3134 of the CCQ clearly accepts domicile as a basis for establishing jurisdiction, and as far as I can discern, the default rule in North America is that a legal person’s place of incorporation is its domicile. Nonetheless, I find it to be quite surprising that the defendants did not try to find some creative way of challenging the use of domicile to assert jurisdiction.

In light of the superficial nature of the connection to Québec, the Plaintiff’s action should have been dismissed outright for a lack of jurisdiction. Since he strictly followed article 3134, Cullen J. had no choice but to raise his legitimate concerns about the strength of the connection between the dispute and Québec in his forum non conveniens analysis. Article 3135 of the CCQ, which entrenches this private international law doctrine, stipulates that

Even though a Québec authority has jurisdiction to hear a dispute, it may exceptionally and on an application by a party, decline jurisdiction if it considers that the authorities of another country are in a better position to decide.

It is perhaps best thought of as a tool that seeks to avoid injustice by providing a defendant with the ability to counter exaggerated, abusive, or exorbitant assertions of jurisdiction. While courts have consistently emphasized its exceptional nature, scholars have repeatedly critiqued courts for applying this doctrine too liberally.[1] It is indeed still quite difficult to determine when a situation warrants the application of this doctrine.

While the Québec court should have definitely refused to assert its jurisdiction, I do not believe that this matter was an instance that clearly warranted the use of forum non conveniens. In his analysis of which court is better positioned to decide the matter, Cullen J. employed the ten factors affirmed in Spar Aerospace Ltd. v. American Mobile Satellite Corp.[2] He correctly assessed that the majority of these factors – notably the location of assets, evidence, and the parties – weigh in favor of an Israeli court.

However, if the dispute’s connection to Québec was somehow more substantial, a strong argument might be made that Israel is not even a viable forum to hear the matter. As James Yap astutely argues, the potential that the war crime, which forms the basis of this action, might not even be justiciable in Israel could “lead to the grossly unjust result of leaving the plaintiff[s] absolutely no forum in which to pursue [their] claim”. Since the entire point of forum non conveniens is to assess which forum is better positioned, it does indeed seem logical to determine whether there is an available, alternative forum. I fully support Talpis and Kath’s recommendation that before assessing  forum non conveniens, a preliminary requirement should be that the foreign forum is indeed adequate and competent to hear the claim.[3] While judges must surely address this underlying issue before they write their decision, a clear presentation of their reasoning on this issue would go a long way to avoid a confusing decision when the viability or impartiality of the forum is contestable.

Provided that there was a substantial connection to Québec, the central issue in this case is really whether a court should decline jurisdiction where war crimes are not justiciable in the alternative forum. Yap convincingly argues that a Canadian court should accept jurisdiction due to the gravity of war crimes, which are universally recognized as severe human rights violations. Some scholars even argue that forum non conveniens should never apply to human rights cases because human rights “supersede [the] convenience of either the parties or the forum”.[4] Indeed, if this case were heard by the Court of Appeal, I hope that these arguments would be directly addressed.

While I am admittedly not entirely familiar with how to go about doing so, I am surprised that the plaintiffs did not try to argue that Québec was the forum of necessity. Article 3136 of the CCQ provides that

Even though a Québec authority has no jurisdiction to hear a dispute, it may hear it, if the dispute has a sufficient connection with Québec, where proceedings cannot possibly be instituted outside Québec or where the institution of such proceedings outside Québec cannot reasonably be required.

The plaintiffs might have argued that Québec has a ‘sufficient connection’ with the dispute due to the grave nature of war crimes, which Canada has recognized with its enactment of the Crimes Against Humanity and War Crimes Act.

Nonetheless, even if the circumstances were different or some of these arguments were accepted, I am not sure whether Québec would be the appropriate forum to hear such a case. While something must be done to address the impunity with which Canadian corporations operate overseas, do we really want a Canadian court to rule on an action that asks it to determine whether a foreign state has committed a war crime? In the end, I suspect that the overwhelming majority of judges would find a way to dismiss such an action as an overreaching assertion of jurisdiction despite the fact that there are legitimate reasons for considering otherwise.

[2] Spar, ibid at para. 71.

[3] Talpis and Kath, supra note 1 at paras. 168-169.

[4] Ibid, at para. 178, referring to K.L. Boyd, “The Inconvenience of Victims: Abolishing Forum Non Conveniens in U.S. Human Rights Litigation”, 39 Va. J. Int’l L. 41 (1998).

Bil’in is a tiny agricultural community of 1,800 residents located 12 kilometres west of Ramallah, well within to the 1967 Armistice line dividing Israel and the West Bank. Though it is firmly rooted in the Occupied Palestinian Territories, the village has been bisected by the Israeli “Security Barrier”. The route of the barrier was deemed to be illegal, and in breach of international law by the International Court of Justice in 2004. In 2007, the High Court of Justice in Israel ordered the wall re-routed, confirming they saw no security or military reasons to maintain the current path of the wall, deeming it “highly prejudicial” to the villagers of Bil’in. Still, the wall remains in place, prompting Bil’in and its allies to seek new forums for judicial redress.

Their attorney, Israeli human rights lawyer Michael Sfard, decided a new approach was needed and began to target the corporations that he claims are complicit in the loss of Bil’in’s land. On the other side of the Israeli barrier, the settlement bloc of Modi’in Ilit has been constructed. And the development companies building these rapidly growing settlements are Green Park and Green Mount, both based in Montreal.

Sfard and his legal team, including Toronto attorney Mark Arnold, crafted an interesting legal argument, suggesting that by building settlements in Occupied Territory – a violation of the Fourth Geneva Convention – the defendant corporations were not only breaching international law, but Canadian law as well. Canada’s Crimes Against Humanity and War Crimes Act imported international law into domestic law. Yet in what was perhaps the most interesting element of Bil’in’s case, the plaintiffs sought to hold these development corporations civilly liable under Quebec’s regime of extracontractual obligations, for breach of the Crimes Against Humanity and War Crimes Act.

Using a statutory breach as a vehicle to create civil liability for aiding and abetting in a war crime was not only an extremely novel  legal tactic, but a model for how corporations could be deterred from engaging in breaches of international law, and human rights. Although Justice Cullen’s decision relied on the theory of forum non conveniens to dismiss the claim, suggesting the Israeli High Court of Justice ought to hear it, he did rule that “A war crime is an indictable offence. As such, it is an imperative rule of conduct that implicitly circumscribes an elementary norm of prudence, the violation of which constitutes a civil fault pursuant to art. 1457 C.C.Q.” Justice  Cullen thus created a groundbreaking precedent, suggesting civil liability in Quebec could easily accrue to any person who committed a war crime, such as breaching the Geneva Conventions by “knowingly participating in a foreign country in the unlawful transfer by an occupying power of a portion of its own civilian population into the territory it occupies.”

The potential ramifications of this decision are immense. Traditionally, only individuals and states have been held liable for breaches of international laws of war. The prospect of putting corporate actors on trial for breaching the laws of war opens up new dimensions of liability, and hopefully acts as a deterrent to those involved in gross violations.

Critics of the Bil’in trial, such as lawyer Ronald Levy of de Grandpré Chait, who represented the defendants, argued that the claim was a publicity stunt. Suing the defendant corporations was certainly a political act. The lawsuit was accompanied by protests from assorted Palestine solidarity groups in Montreal, and was profiled as a new branch of Palestinian civil struggle on Al-Jazeera, known as the “Courtroom Intifada.” Yet international law remains inherently political, and it could be argued that the act of building homes on disputed territory should not be available risk free to all those companies seeking a profit.

Attorney Michael Sfard seems confident about the village’s appeal. He told Radio-Canada, “The litigation is between a Palestinian village and a Canadian company. Why would an Israeli court be a better place to adjudicate the matter than a Canadian court?”

The villagers in Bil’in are also hopeful the appeal will prevail. They have responded with weekly non-violent protests that have become the subject of international attention. Friday afternoons in Bil’in begin with the midday prayers, followed by teams of Palestinians, left-wing Israelis and international activists marching to the fence to confront the Israeli Army stationed there; cadres of reporters from Reuters, BBC, Al-Jazeera and other networks are always close in tow. The village has become known for these protests, and are uploaded each week to Youtube.

The Canadian court system has the opportunity here to set a global precedent and raise the bar for the conduct of corporations operating not only in the Occupied Territories, but in every conflict zone. As Sfard told the Jerusalem Post, it is “important to take action against private individuals and companies that help the state in its actions that violate international humanitarian law.”