Zhang v. Zemin.

• Author: Wardle, Phillip
• Position: Domestic remedies for extraterritorial torture and human rights abuses

Introduction

In Zhang v Zemin (1) the NSW Supreme Court was asked to consider a civil action for torture and other human rights abuses raised by a member of the Falun Gong movement, allegedly perpetrated by organs of the People's Republic of China ('PRC') in the territory of that State. In the statement of claim, the plaintiff named the defendants as former Chinese President Jiang Zemin, the '610 Office' (the government bureau charged with the control and suppression of the Falun Gong) and a senior member of the Communist Party of China, Luo Gan. The plaintiff requested that the Court enter a default judgment against the defendants, citing their lack of response to the statement of claim, at which point the Commonwealth Attorney-General intervened, issuing a certificate that affirmed the immunity of all defendants in accordance with s 40 of the Foreign States Immunities Act 1985 (Cth) ('FSIA').

Justice Latham went on to determine that the defendants were all entitled to complete immunity from the civil jurisdiction of Australian courts according to the operation of the FSIA, and thus the Court could not entertain a substantive claim against them. The Court relied heavily on the English case of Jones v The Kingdom of Saudi Arabia (2) and based its conclusion on two premises. First, it was decided that acts of torture committed by the agents of a State must be attributed to the State itself when determining the application of sovereign immunity. (3) Second, it was concluded that relevant authorities suggest there can be no exception to State immunity for extra-territorial civil claims alleging acts of torture. (4)

Analysis: State immunity

1. Distinction between the State and its agents

Perhaps the most curious feature of the Supreme Court's judgment was the assumption that the acts of all three defendants necessarily became attributable to the PRO The Court determined that as s 9 of the FSIA provides for the immunity of foreign States before Australian courts and as s 3 stipulates that the definition of a foreign State will encompass the head of State and the representative individuals and organs of that State, the defendants were entitled to immunity. (5) In arriving at this conclusion, the Court considered whether, by allegedly committing acts of torture, State representatives could be acting in their official capacity. It was concluded that because--under the Convention Against Torture and Other Cruel, Inhuman or Degrading Conduct or Punishment, (6) to which both Australia and the PRC are parties--acts of torture can only be committed by, or with the consent or acquiescence of, public official or other persons acting in an official capacity, (7) such acts are by definition official acts to which State immunity will attach. (8)

As mentioned above, the Court in this instance was informed by the deliberations of Lords Bingham and Hoffman in Jones, in which it was similarly determined that the commission of acts of torture must have been in discharge of the State representative's official duties. (9) This principle has been debated rigorously in domestic and international jurisprudence. In fact, in its earlier and well-documented decision in the Pinochet case, (10) the House of Lords adopted the contrary position, asserting that torture could not be categorised as part of the accepted functions of the State. (11) The problem arises from the status of torture as jus cogens; that is, a peremptory norm of international law from which no derogation is permitted. (12) The corollary of this status is illustrated by the Convention Against Torture, which contemplates the exercise of universal jurisdiction over acts of torture (13) and demands that States ensure victims are entitled to redress and adequate compensation in domestic law. (14)

If jus cogens norms occupy a superior position in the hierarchy of international law, it appears contradictory to grant State immunity for violations of such norms. To do so...