Li v Zhou

The case of Li v Zhou involved the plaintiff, Li, suing the first defendant, Zhou, who is a foreign state diplomat, and the second defendant, a private citizen, for alleged breaches of international law, including torture and unlawful imprisonment. The dispute came before the Federal Court of Australia, where the primary issue was whether the first defendant had submitted to the jurisdiction of the Australian courts by virtue of an agreement under the Foreign States Immunities Act 1985. Specifically, the court needed to determine whether any agreement to submit to jurisdiction must be express or if a clearly implied agreement, such as that found in Article 14 of the Convention Against Torture, would suffice.

The court considered whether the Convention Against Torture, which obligates signatory states to establish jurisdiction over acts of torture, could be construed as an implied agreement for the first defendant to submit to the jurisdiction of Australian courts. The court held that any submission to jurisdiction by a state must be express and not merely implied. The court found that the Convention Against Torture, while it imposed obligations on states, did not include an express or clearly implied waiver of immunity from jurisdiction in respect of private civil suits in foreign courts. Therefore, the first defendant had not submitted to the jurisdiction of the Australian courts.

Consequently, the court dismissed the action against the first defendant on the grounds of state immunity. The court did not need to address the claims against the second defendant, as the immunity of the first defendant was determinative of the case. The plaintiff's claims against the first defendant were dismissed, and no orders were made in respect of the second defendant.