Transnational judging is on the rise, but it is not a uniform or one-directional process, as a few recent developments confirm.
First up, Spain. For decades, Spanish judges have been on the forefront of what is known as “universal jurisdiction.” Under this doctrine, according to the New York Times, Spanish judges can “prosecute individuals outside their territory for crimes of “international character,” such as genocide, torture, war crimes and crimes against humanity.” Now, the ruling Popular Party is seeking to roll this back, claiming it hurts diplomatic and commercial relationships. The Times offers up a few potential motivations for these changes:
Human rights advocates argue that a double standard has emerged — where it is acceptable to prosecute abuses in weak countries but not in global powers. And they argue that the changes now proposed by the Popular Party would effectively end the use of universal jurisdiction: In cases of genocide, crimes against humanity and war crimes, Spanish judges could investigate only if the suspect is a Spanish national, a foreigner living in Spain or a foreigner in Spain whose extradition has been denied by Spanish authorities. Similar restrictions would also be applied to torture cases.
“They are trying to eliminate universal jurisdiction,” said Judge Garzón, whose aggressive use of the doctrine later led to his suspension from the Spanish bench in 2010. “That is their goal. They have never believed in it.”
Indeed, Spain is now on the receiving end of such international litigation, as a judge in Argentina is investigating war crimes committed during the era of the Spanish dictator Franco. Popular Party leaders are chafing at that case, and some analysts say that the pressure from China has provided an excuse for the government to dilute a legal doctrine that has brought diplomatic headaches.
Second stop, the United States. For a few decades, there has been a move to increase the global or extra-territorial reach of the justice provided by American courts. Under federal laws like the Alien Tort Claims Act, and similar state tort doctrines, individuals anywhere in the world had the possibility of using US courts to get remedies for alleged wrongdoing by US corporations. But, as I write here for UNCTAD, the US Supreme Court has limited the use of the federal law, and state courts have been hobbled by US deference to another channel of legal globalization: investor-state treaty arbitration.