Three Objections to Forum of Necessity: Global Access to Justice, International Criminal Law and Proper Party

Abstract

This paper aims to raise some concerns about the very plausibility of the so-called “forum of necessity” doctrine [“Necessity”] as a legitimate ground for jurisdiction acquisition. It raises challenges in the very incorporation of Necessity within Canadian jurisprudence and subsequently it is reticent about the suggested further extension and expansion of the doctrine. Throughout the paper the objections to Necessity are structured around the following three interrelated lines: (1) the adoption of the “forum of necessity” doctrine means a mischaracterization of the nature and scope of the domestically developed principle of “access to justice”; (2) Necessity challenges the division between private international law and international criminal law which de facto leads to the conceptual collapse of Necessity into the doctrine of “universal jurisdiction”; (3) Necessity is not an appropriate vehicle for the rehabilitation of the traditional jurisdictional doctrine of “proper and necessary party” that is suggested in the literature.

Keywords: forum of necessity, access to justice, universal jurisdiction , proper party , judicial jurisdiction

JEL Classification: K00, K100, K330, K400, K410, K490, N400