38 Pages Posted: 10 Aug 2012
Date Written: August 8, 2012
This brief seeks to highlight error in certain positions staked out by the Commonwealth of Australia (Australia) in relation to its jurisdictional opposition to the U.S. Alien Tort Statute, 28 U.S.C. §1350 (ATS). The essence of the Australian position is based on its claimed “opposition to overly broad assertions of any extraterritorial civil jurisdiction arising out of alien’s claims against foreign defendants for foreign activities that have allegedly caused foreign injury.” This argument cannot withstand scrutiny and the argument by amici here proceeds along two lines. First, the exercise of ATS jurisdiction in connection with gross human rights violations in the sovereign territory of other states is clearly permissible under international law. In order to demonstrate otherwise, it is incumbent on Australia to prove the existence of an international rule binding on the U.S. that prohibits such exercise. This Australia cannot do. Second, Australia’s own projection of extraterritorial jurisdiction extends to persons, things, and events in the sovereign territory of other countries in a way akin to ATS jurisdiction. Like ATS jurisdiction, Australia’s exercise of extraterritorial jurisdiction is permissible under international law. However, it clearly undermines Australia’s argument against the ATS.
Keywords: International Law, Jurisdiction, Alien Tort Statute, Human Rights, Australia
JEL Classification: K33, K41, F23
Suggested Citation: Suggested Citation
Anton, Don, Amicus Curiae Brief of Australian International Law Scholars in Kiobel v. Royal Dutch Petroleum (August 8, 2012). Available at SSRN: https://ssrn.com/abstract=2126894 or http://dx.doi.org/10.2139/ssrn.2126894