# Amicus Curiae Brief — Kiobel v. Royal Dutch Petroleum Co.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0700%3A060

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2013
- **Citation:** 569 U.S. 108

## Text

Supreme Court, U.8.
FILED

JUN 13 2012

: No. 10-1491 fC Oe Di CLERK

In the Supreme Court of the United
States

ESTHER KIOBEL, et al.,
Petitioners,
an
RoyAL DuTCH PETROLEUM Co., et ail.,

Respondents.

On Writ of Certiorari to the United States Court of
Appeals for the Second Circuit

SUPPLEMENTAL BRIEF OF AUSTRALIAN
INTERNATIONAL LAW SCHOLARS, AMICI
CURIAE IN SUPPORT OF PETITIONERS

DONALD KRIS ANTON
Counsel of Record
THE AUSTRALIAN NATIONAL UNIVERSITY COLLEGE
OF LAW
Canberra, ACT 0200
Australia
011 61 2 6125 3516
antond@law.anu.edu.au

Counsel for Amici Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................ ili
STATEMENT OF IDENTITY AND INTEREST OF
pe ge Pee 1
SUMMARY OF ARGUMENT ................ 4
PS, SPT ree ee 7
I. Contrary to Australia’s Claim, international

law does not prohibit the assertion of
extraterritorial jurisdiction under the

HE occenvtwawedesvaecveneesbeseeee 7
A. The Australian starting point of

analysis is backwards ........... 7
B. No positive prohibition in

international law restricts the
extraterritorial application of the

Pp er 12
II. Australia legally asserts and projects
extraterritorial jurisdiction in ways akin to
Pere ee ere ee ee Oe 23
A. Australia exercises broad

constitutional legislative jurisdiction
over matters geographically external

i

ES 24

B. Statutory examples of broad

extraterritorial jurisdiction ...... 28
C. Adjudicatory Jurisdiction ........ 37
ER 41

APPENDIX - LIST OF AMICI CURIAE
AUSTRALIAN INTERNATIONAL LAW
EERE a A-1

ll

TABLE OF AUTHORITIES

Federal Cases

Bowoto v. Chevron Corp.,
621 F.3d 1116 (9" Cir. 2010) ...... 13 n.15

Cont'l Cas. Co. v. Axa Global Risks (UK) Ltd..,
2010 U.S. Dist. LEXIS 32850 (W.D. Mo.) 20

Doe v. Exxon Mobil Corp.,

654 F.3d 11 (D.C. Cir. 2011)....... 13 n.16
Doe v. Unocal,

248 F.3d 915 (9th Cir. 2001) ...... 13 n.15
F. Hoffman LaRoche Ltd v. Empagran, S.A.,

a as PE, oh aeebeeesvauaaes 22
Filartiga v. Pena-Irala,

630 F.2d 876 (2d Cir. 1980) ........... 18
Goldhammer v. Dunkin' Donuts, Inc.,

59 F. Supp. 2d 248 (D. Mass., 1999) .... 20
In re Alstom SA,

406 F.Supp.2d 346 (S.D.N.Y. 2005) ..... 22

Kane v. Winn,
319 F.Supp.2d 162 (D. Mass. 2004) ..... 19

Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111
SG GEES oweckaceneecneeadees 6 n.7

Kiobel v. Royal Dutch Petroleum Co., No.10-1491,
Order (U.S. March 5, 2012) ................. 3

Liu Bo Shan v. China Construction Bank,
421 Fed.Appx. 89 (2d Cir. 2011) ... 13n.15

Presbyterian Church of Sudan v. Talisman,
No. 01 Civ. 9882(DLC),
2005 U.S. Dist. LEXIS 18399, 2005 WL
2082846 (S.D.N.Y. Aug. 30, 2005) .. 13 n.16

Sarei v. Rio Tinto Pic,
221 F. Supp. 2d 1116
3 EB rer a ere 14 n.16

Sarei v. Rio Tinto Plc,
650 F. Supp. 2d 1004
i Cn Pn pcb eecenevesee 13-14 n.16

Sarei v. Rio Tinto,
671 F.3d 736 (9th Cir. 2011) ........ 2n.3

Siderman de Blake v. Republic of Argentina,
965 F.2d 699 (9th Cir. 1992) ........ 18-19

Sosa v. Alvarez-Machain,
542 U.S. 692 (2004)......... 2n.3, 11n.13

Trujillo v. Conover & Co. Communs., Inc.,
221 F.3d 1262 (11th Cir. 2000) ........ 20

United States v. Arjona,
RE PE Pe ae a 41

United States v. Yousef,
327 F.3d 56 (2d Cir. 2003) ........ 27 n.37

Wiwa v. Royal Dutch Petroleum Co.,
626 F.Supp.2d 377 (S.D.N.Y. 2009) . 13 n.15

1V

Federal statutes and rules

Alien Tort Statute, 28 U.S.C. § 1350 ...... passim

International Treaties

Charter of the United Nations,
1 U.N.T.S. XVI (Oct. 24, 1945) ...... 15 n.20

International Cases

Armed Activities on the Territory of the Congo
(Dem. Rep. Congo v. Uganda), 2005 1.C.J.
ES a dae ye dd Cute ead ehewes a 18

Arrest Warrant of 11 April 2000
(Dem. Rep. Congo v. Belg.), 2002
bP we) S! eee 8, 9, 9-10, 15 n.17

Barcelona Traction, Light and Power Co. (Belg. v.
Sp.) 1970 1.C.J. 3 (Feb. 5) .......... 18, 21

East Timor (Port. v. Austl.),
1995 1.C.J. 90 (Jume 30) .............. 18

Legality of the Threat or Use of Nuclear Weapons,
Advisory Opinion,
1996 1.C.J. 226 (July 8) ......... 9&n.10

Military and Paramilitary Activities in and
against Nicaragua (Nicar. v. U.S.),
1986 1.C.J. 14 (June 27) ....... 9&n.9, 15

Nationality Decrees Issued in Tunis and Morocco,
Advisory Opinion, 1923 P.C.I.J. (ser. B) No.
EE oe eid coe a de oe dade eee 16

North Sea Continental Shelf Cases (F.R.G. v.
Denmark; F.R.G. v. Netherlands),
1969 I.C.J. 3 (Feb. 20)........ 14-15 & n.17

Nuclear Weapons Opinion,
1996 I.C.J. 226 (July 8) .............. 18

S.S. Lotus (Fr. v. Turk.),
1927 P.C.I1.J. (ser. A)
No. 10 (1927) (Sept. 7) ........... passim

S.S. Wimbledon Case (U.K. v. Japan),
1923 P.C.1.J. (ser. A)
et) frre eee 10 n.11

South West Africa Cases (Eth. v. S. Afr.; Liber. v. S.
Afr.), 1962 I.C.J. 319 (Dec. 21) ......... 17

Australian Cases

Birmingham University and Epsom College v.
Commissioner of Taxation,

(1938) GO C.L.R GTB... ccc cc ccc cece: 40
Dow Jones & Co. v. Gutnick,

Se Se Gee, COD noes cccceccccces 37
Ex parte AUS Student Travel Pty. Ltd.,

(1078) 196 C.L.M. BOL .. ccc cc ccccess 40
Gagarimabu v. BHP Ok Tedi,

[2001} V.S.C. 304 (27 Aug.) ........... 40

Gagarimabu v. Broken Hill Proprietary Co. Lid.,
6 sn bk oe bok 6 oe eee 40

vi

Habib v. Commonwealth,

RE Pe eee eee 4n.4
Horta v. Commonwealth,

(1994) 181 C.L.R. 183 ..... 25, 27 nn. 36,37
New South Wales v. Commonwealth,

(1975) 135 C.L.R. 337 .......... 25 & n.32
Polities v. Commonwealth,

PPA EE 6 ct ccaeessceeesies 29
Polyukhovich v. Commonwealth,

(1901) 172 C.L.R. GOL ..... ce ece passim
R v. Halton; Ex parte AUS Student Travel Pty.

Lid.,

See a Ge AE oc ow ev ecceuecesecs 40
Re Colonel Aird; Ex parte Alpert,

(2004) 220 C.L.R. 308 .............. 20-21
Re Maritime Union; Ex parte CSL Pacific,

(2003) 214 C.L.R. 397 ...........2.2.2.. 40
Regie National Des Usines Renault SA v. Zhang,

CHOSE) BIO C.BanM. SOE ow ccc ccc ccs’ 39
The Queen v. Ahmad

(2011) 254 F.L.R. 361 .......... 9, 29, 30

Trustees Executors and Agency Co. Ltd. v. Federal
Commissioner of Taxation,
(1939) 49 C.L.R. 220 .............. 22-33

Victoria v. Commonwealth,
(1996) 187 C.L.R. 416 ............. 25, 26

Vii

XYZ v. Commonwealth
(SGGG) SBT C.1.. GSB .. wc ccceccs passim

Australia Statutes and Rules

Acts Interpretation Act 1901 (Cth) ....... 33 n.47
Anti-Money Laundering and Counter-Terrorism
Financing Act 2006 (Cth) ......... 28 n.40
Australia Act 1986 (Cth) ............... 28 n.40
Australian Securities and Investment Commission
> 6664 eowhedadseuay 28 n. 40
Commonwealth of Australia Constitution Act 1900
Pe he vdie tion 54464404040 4400865 24
Corporate Code of Conduct Bill
DE $4 535404440408 00 4" 27, 28 n.38

Criminal Code Act 1995 (Cth) .. 30 & n.42, 31, 32

Environmental Protection Biodiversity
Conservation Act (1999) (Cth) ...... 32, 33

Export Control (Animals) Order 2004 (Cth) 34, 36

Family Law Act 1971 (Cth) ............ 28 n.40
Migration Act 1953 (Cth) ................ 29-30
Migration Act 1958 (Cth) .............. 28 n.40
Surveillance Devices Act 2004 (Cth)...... 28 n.40

Trade Practices Act 1974 (Cth) .......... 28 n.40

Vill

War Crimes Act 1945 (Cth) ........... 38 & n.58

Workplace Relations Act 1996 (Cth) .......... 40
U.K. Cases
Jones v. Ministry of the Interior of the Kingdom of
Saudi Arabia,
[2007] 1 A.C. 270 (H.L.),
i 2 Es nis os 4 oO 0 ae 14

R. v. Immigration Officer at Prague Airport,
[2004] UKHL 55 (Steyn L.J.) .......... 19

Books and Law Review Articles

Michael Akehurst, Jurisdiction in
International Law, 64 Brit. Y.B.
EE Cy Sere 5 n.6, 12

Alex Bruce, Animal Law in Australia: An
Integrated Approach (2012) ....... 34 n.51

Felix Ermacora, Art. 2(7), in The Charter of
the United Nations: A Commentary
(Bruno Simma, ed., 1995) ......... 16 n.23

Brian Fitzgerald, Dow Jones & Co Inc v Gutnick:
Negotiating 'American Legal Hegemony’ in
the Transnational World of Cyberspace, 27
Melb. U.L.R. 590 (2003) .......... 39 n.59

Gerald Fitzmaurice, The General Principles of
International Law, 92 Rec. des Cours 1
Disc 2.4. eats ee oer aureus 5 n.6, 12

1X

D.W. Greig, International Law
oa ad kh 6 44:6 64 ee eee 8n.8

Louis Henkin, The Age of Rights (1990) ...... 23

Robert Jennings & Arthur Watts,
Oppenheim 's International Law,
ME os one buy veuss 19-20 n.25

Philip C. Jessup, A Modern Law of Nations
Es Kb aden sok he oa 6k eu Oa so 16 n.21

Vedna Jivan & Christine Forster, Making the
Unaccountable Accountable:
Using Tort to Achieve Corporate
Compliance with Human Rights
Norms, 15 Torts L.J. 263 (2007)... 4, 37 n.57

Sarah Joseph, Corporations and Transnational
Human Rights Litigation (2004) ........ 3

Joanna Kyriakakis, Australian Prosecution of
Corporations for International Crimes,
5 Int’] Crim. Just. 809 (2007) ...... 31n.43

J.G. Latham, An Australian Opinion on Article
15(8) of the Covenant of the League of
Nations,

7 Brit. Y.B. Int’) L. 185 (1926) ..... 16 n.22

Elihu Lauterpacht, Sovereignty — Myth or Reality,
Te ae. Ge. BOT CHRO oc vec ccccncs 10 n.11

Vaughn Lowe, Jurisdiction, in International Law
(Malcolm D. Evans, ed., 2003) ... 11 &n.14

Andreas F. Lowenfeld, Public Law in the
International Arena, 163 Rec. des Cours 311,
coe ua k's ae oes ew ae ea ee 22 n.28

F.A. Mann, The Doctrine of Jurisdiction Revisited
After Twenty Years, 186 Rec. des Cours 19
ES a eae pe ee ll n.14

Sir Anthony Mason, International Law as a Source
of Law in Domestic Law, in Brian R.
Opeskin & Donald R. Rothwell, eds.,
International Law and Australian
ee ee 29

Adam McBeth, International Economic Actou.s and
Human Rights: Global Rules for Global
ns oe ee eis eee ae a 3

Myres S. McDougal, et al., Human Righis and
World Public Order: The Basic
Policies of an International Law
of Human Dignity (1980) ......... 18 n.24

Odette Murray, David Kinley & Chip Pitts,
Exaggerated Rumours of the Death of an
Alien Tort: Corporations, Human Rights and
the Peculiar Case of Kiobel, 12 Melb. J. Int'l
ad oan to kg ag Co ok oe es ae es 3-4

D.P. O’Connell, UJ International Law
NER eee tenn nes Eee ne 8n.8

Xi

Anne O’Rourke and Chris Nyland, The Recent
History of the Alien Tort Claims Act:
Australia’s Role in its (Attempted) Downfall,
25 Australian Y.B. Intl L.139 .

ES a bok d's cw in kde a bce ee We 2 n.2, 3

Caley Otter, Siobhan O'Sullivan and Sandy Ross,
Laying the Foundations for an International
Animal Protection Regime, 2 J. Animal
er ee a a a 6 ee 36 n.55

John Quick & Robert Garran, The Annotated
Constitution of the Australian
Commonwealth § 52(1901)........ 24 n.30

Cedric Ryngaert, Universal Tort Jurisdiction
Over Gross Human Rights Violations, 38
Neth. Y.B. Int’] L. 3 (2007) ........ 19 n.25

Oscar Schachter, International Law in Theory
and Practice (1991) .............. 22 n.29

I. A. Shearer, Starke’s International Law
a es ery ee ee 8 n.8

Ellery C. Stowell, Intervention in
International Law (1921) ......... 16 n.21

Gillian Triggs, International Law: Contemporary
Principles and Practices
ERAS tt SERS TR ea amen ee 8 n.8

Leslie Zines, The High Court and the Constitution
Ss Es 5 bh so op 44 66 oes 25 n.31

Xil

Other Authorities

Alexander Hamilton, The Federalist No. 78 ... 41

Australian Position Statement on the Export of
Livestock (Nov. 2006) ............ 37 n.56

Australian Standards for the Export of Livestock
ao eee 35 n.53

Brief of Amici Curiae BP America, Caterpillar,
Conoco Phillips, General Electric,
Honeywell, and International Business
Machines in Support of Respondents,

Kiobel v. Royal Dutch Petroleum Co.,
2012 WL 392536 (U.S. Feb. 3, 2012) .. 4n.5

Brief of Chevron Corporation, Dole Food Company,
Dow Chemical Company, Ford Motor
Company, GlaxoSmithKline PLC,
and the Procter & Gamble Company
as Amici Curiae in Support of
Respondents, Kiobel v. Royal Dutch
Petroleum Co., 2012 WL 392538
Sy ee Se eee ue 4n.5

Brief of the Governments of the Commonwealth of
Australia, the Swiss Confederation and the
United Kingdom of Great Britain and
Northern Ireland as Amici Curiae in
Support of the Petitioner,

Sosa v. Alvarez-Machain, 542 U.S. 692
(2004),

2004 U.S. S.Ct. Briefs LEXIS 910

(U.S Jan. 23, 2004) .. 2n.3, 10 n.12, 20 n.27

Xiil

Brief of the Governments of the United Kingdom of
Great Britain and Northern Ireland and the
Commonwealth of Australia As Amici Curiae
in Support of the Defendants-
Appellees/Cross-Appellants, Sarei v. Rio
Tinto, PLC., 671 F.3d 736 (9th Cir. 2011)
(Nos. 09-56381, 02-56256, 02-56390)

2009 WL 8174961
(9th Cir. Dec. 16, 2009) ........... passim

Commonwealth, Parliamentary Debates, House of
Representatives, 18 October 2006, 127 (Mr.
CE es 6's wed eee a ee oS o-4% _33 n.48

Department of Agriculture, Fisheries, and
Forestry, Exporter Supply Chain Assurance
System available at
http://www.daff.gov.au/aqis/export/live-
animals/livestock/escas (last accessed June
Cee ree ne oO és 35 n.53

Department of Agriculture, Fisheries, and
Forestry, Guidance on Meeting OIE Code
Animal Welfare Outcomes for Cattle and
Buffalo Version 2.2 (Austl.) ....... 36 n.55

Department of Agriculture, Fisheries, and Forestry,
Live Animal Export Trade (May 18, 2012)
I. Ming NS iS Oe ie ee at 34 n.52

Department of Sustainability, Environment,
Water, Population and Communities, List of
Overseas Places of Historic Significance to
ee a rs Bae G 34 nn. 49, 50

Institut de Droit International, 63 Annuaire de
l'Institut de Droit International
PO. «0 0'¢se aa e eee eee 17-18 n. 24

International Law Association, Final
Report on the Exercise of Universal
Jurisdiction in Respect of Gross Human
Rights Offenses (2000) ........... 20 n.25

International Law Commission, Articles on the
Responsibility of States for Internationally
Wrongful Acts, U.N. GAOR, 56th Sess..,
Supp. No. 10,

U.N. Doc. A/56/10 (2001) ......... 19 n.25

Joint Standing Committee on Treaties, Report 45 —
The Statute of the International Criminal
Court (May 2002) ....... 31 n.44, 32 n.45

Motion for Leave to File Brief as Amici Curiae
and Brief of the Governments of Australia
and the United Kingdom of Great Britain
and Northern Ireland as Amici Curiae in
Support of the Petitioners on Certain
Questions in Their Petition for a Writ of
Certiorari, Rio Tinto, PLC. v. Sarei,
No. 11-649, 2011 WL 6934726
(U.S. Dec. 28, 2011) (“Sarei SCOTUS
RD co. ou pe 'eala ak eee 2 n.3, 6

Parliamentary Joint Committee on Corporations
and Securities, Report on the Corporate
Code of Conduct Bill 2000 (Austl.) .. 28 n.39

XV

Restatement (Third) of the Foreign
Relations Law of the United

States (1987) ........ 18, 19 n.25, 22 n.28

U.N. Human Rts. Comm., Gen. Comment
No. 31 [80] The Nature of the General Legal
Obligation Imposed on States Parties to the
Covenant at para. 2, U.N. Doc.
CCPR/C/21/Rev.1/Add.13
(May 26, 2004)

XVI

STATEMENT OF IDENTITY AND INTEREST
OF AMICI CURIAE'

Amici Curiae are Australian International
Law scholars engaged in all aspects of public
international law at law schools across Australia.
Amici Curiae have no personal stake in the
outcome of this case. Our interest is in seeing the
international rule of law upheld and applied in a
manner consistent with the Constitution of the
United States.

Amici Curiae (amici) seek to highlight error
in certain positions staked out by the
Commonwealth of Australia (Australia) in relation
to its jurisdictional opposition to the Alien Tort
Statute, 28 U.S.C. §1350 (ATS). To our knowledge,
prior to 2004 Australia never publicly protested or
judicially challenged the exercise of ATS
jurisdiction. Starting in 2004, however, in two
cases, Australia joined in a series of amici curiae
briefs filed in the Supreme Court of the United
States and the Circuit Court of Appeals for the

"All parties to this appeal have consented to the
filing. Amici affirm that no counsel for a party authored the
brief in whole or part and no person other than amici or
their counsel made a monetary contribution to this brief.

]

Ninth Circuit’ to challenge the assertion of
extraterritorial jurisdiction under the ATS.°®

* Australian scholars have highlighted the political nature of
“the Australian government’s role in attempting to undermine
[the ATS]}”. Anne O’Rourke and Chris Nyland, The Recent
History of the Alien Tort Claims Act: Australia’s Role in its
(Attempted) Downfall, 25 Australian Y.B. Int'l L. 139, 142
(2006). According to O’Rourke and Nyland, the involvement of
coalition government of Prime Minister John Howard “in the
Bush Administration’s campaign to restrict the jurisdiction of
the [ATS]” in Sosa was consistent with the government’s
“general opposition to the linking of trade and investment with
human rights”. Jd., at 140-141.

° Australia appeared first as amici to challenge ATS
jurisdiction in the Supreme Court in Sosa v. Alvarez-Machain,
542 U.S. 692 (2004) and subsequently in the Ninth Circuit and
the Supreme Court in Sarei v. Rio Tinto, 671 F.3d 736 (9th Cir.
2011). See, e.g., Brief of the Governments of the
Commonwealth of Australia, the Swiss Confederation and the
United Kingdom of Great Britain and Northern Ireland as
Amici Curiae in Support of the Petitioner, Sosa v. Alvarez-
Machain, 542 U.S. 692 (2004), 2004 U.S. S.Ct. Briefs LEXIS
910 (U.S dan. 23, 2004) (“Sosa Brief’); Brief of the
Gcvernments of the United Kingdom of Great Britain and
Northern Ireland and the Commonwealth of Australia As
Amici Curiae in Support of the Defendants-Appellees/Cross-
Appellants, Sarei v. Rio Tinto, PLC., 671 F.3d 736 (9th Cir.
2011) (Nos. 09-56381, 02-56256, 02-56390), 2009 WL 8174961
(9th Cir. Dec. 16, 2009) (“Sarei brief”); Motion for Leave to File
Brief as Amici Curiae and Brief of the Governments of
Australia and the United Kingdom of Great Britain and
Northern Ireland as Amici Curiae in Support of the Petitioners
on Certain Questions in Their Petition for a Writ of Certiorari,
Rio Tinto, PLC. v. Sarei, No. 11-649, 2011 WL 6934726 (U.S.
Dec. 28, 2011) (“Sarei SCOTUS Motion”).

A central position Australia has advanced in
error bears directly on the question that the Court
has ordered the parties to brief supplementally.
Kiobel v. Royal Dutch Petroleum, Order in Pending
Case (Order List: 565 U.S., March 5, 2012)(10-
1491). In particular, Australia maintains that
international law prohibits the exercise of ATS
jurisdiction where a tort committed in violation of
the law of nations takes place outside the United
States of America (U.S.) in the absence of a close
nexus. This position is incorrect at international
law and is belied by Australia’s own projection of
extraterritorial jurisdiction.

Amici have an interest in providing the
Court with an impartial discussion and analysis of
the proper application of norms of international
law supporting the exercise of extraterritorial
jurisdiction under the ATS. In contrast to the
Australian government, Australian scholars who
have considered the ATS have been uniformly
supportive of litigation thereunder and its
permissibility at international law. See Sarah
Joseph, Corporations and Transnational Human
Rights Litigation 148-151 (2004); Adam McBeth,
International Economic Actors and Human Rights:
Global Rules for Global Players 304 (2011); Odette
Murray, David Kinley & Chip Pitts, Exaggerated
Rumours of the Death of an Alien Tort:

3

Corporations, Human Rights and the Peculiar Case
of Kiobel, 12 Melb. J. Int’ L. 1 (2011); Vedna Jivan
& Christine Forster, Making the Unaccountable
Accountable: Using Tort to Achieve Corporate
Compliance with Human Rights Norms, 15 Torts
L.J. 263 (2007); Anne O’Rourke and Chris Nyland,
The Recent History of the Alien Tort Claims Act:
Australia’s Role in its (Attempted) Downfall, 25
Australian Y.B. Int’] L. 139, 142 (2006).*

To date, Australia has not appeared as
amicus to challenge jurisdiction in this case, but
Australia’s prior briefing on this issue has been
relied on by the respondents and a number of amici
supporting the respondents in this appeal.* It is
thus important to hear from amici.

SUMMARY OF ARGUMENT

* One Australian court has cited ATS cases with approval in
rejecting Australian government arguments about the
applicability of the act of state doctrine in relation to claims by
an Australian citizen held prisoner at Guantanamo Bay, Cuba.
Habib v. Commonwealth, 265 A.L.R. 50, 77-78 (2010) (Jagot,
J.).

° See, e.g., Brief of Amici Curiae BP America, Caterpillar,
Conoco Phillips, General Electric, Honeywell, and
International Business Machines in Support of Respondents,
Kiobel v. Royal Dutch Petroleum Co., 2012 WL 392536 (U.S.
Feb. 3, 2012); Brief of Chevron Corporation, Dole Food
Company, Dow Chemical Company, Ford Motor Company,
GlaxoSmithKline PLC, and the Procter & Gamble Company as
Amici Curiae in Support of Respondents, Kiobel v. Royal Dutch
Petroleum Co., 2012 WL 392538 (U.S. Feb. 3, 2012).

The argument by amici is hmited in scope.
Amici emphasize that their brief only addresses
one aspect of Australia’s objections to extra-
territorial application of the ATS — namely, that
international law purportedly prohibits the
exercise of U.S. jurisdiction for violations of
international law (that are also torts) occurring
within the territory of a sovereign other than the
U.S.° In addition, amici limit their argument to
tortious violations of international law that
constitute gross human rights violations cognizable
under the ATS. Amici show that international law
sets no jurisdictional prohibition on the ATS in
this context. Indeed, international law is
permissive instead; it is clear in this case that ATS
jurisdiction lies at international law.

The essence of the Australian position is
based on its claimed “opposition to overly broad
assertions of any extraterritorial civil jurisdiction

® While strictly outside of the scope of the question briefed
here, Australia has maintained that ATS jurisdiction over
foreign nationals and foreign factual circumstances is
improper. This is clearly not the case. See Michael Akehurst,
Jurisdiction in International Law, 64 Brit. Y.B. Int'l L. 145,
177 (1972-73) (in civil cases “the assumption of jurisdiction by
a State does not seem to be subject to any requirement that the
defendant or the facts of the case need have any connection
with that State”); Gerald Fitzmaurice, The General Principles
of International Law, 92 Rec. des Cours 1, 73-81 (1957).
Moreover, as seen in section I1.C, infra, Australia projects
jurisdiction over foreign nationals and foreign factual
circumstances in a way akin to the ATS.

arising out of aliens’ claims against foreign
defendants for foreign activities that have
allegedly caused foreign injury.” Sarei SCOTUS
Motion at 1. Australia maintains that
“international law does not permit U.S. courts to
exercise extraterritorial civil jurisdiction to
adjudicate [ATS] claims with little or no connection
to the United States.” Jd. at 5. In the context of
gross human rights violations, such as those
alleged here,’ Australia professes a strong
commitment to “the promotion of, and protection
against violations of, human rights,” id. at 1, but
curiously seems content to see their violation go
without remedy.

Australia opposes U.S. protection against
gross human rights violations under the ATS
because it “would interfere fundamentally with
other nations’ sovereignty, and does not fall within
accepted bases of jurisdiction under international
law.” Id. at 8. This argument by Australia 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.

* Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 123 (2d
Cir. 2010).

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.

ARGUMENT

I. Contrary to Australia’s claim,
international law does not prohibit the
assertion of extraterritorial jurisdiction
under the ATS

A. The Australian starting point of
analysis is backwards

In 1927, the Permanent Court of
International Justice (PCIJ) set down the basic
international rule on the exercise of jurisdiction by
states. The PCIJ recognized a need to account for
a world of independent, autonomous, and equal
states and an international legal system built
around consent. As a result, the court ruled that
the exercise of jurisdiction (be it prescriptive or
adjudicatory) by a state is presumptively lawful
absent proof of a positive international rule that
prohibits the exercise of such jurisdiction. The
court explained:

Far from laying down a general prohibition
to the effect that States may not extend the

7

application of their laws and the jurisdiction
of their courts to persons, property and acts
outside their territory, [international law]
leaves them in this respect a wide measure
of discretion which is only limited in certain
cases by prohibitive rules; as regards other
cases, every State remains free to adopt the
principles which it regards as best and most
suitable.

S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No.
10, at 18-19 (1927) (Sept. 7) (emphasis added).

This jurisdictional bedrock for prescriptive
and adjudicative jurisdiction is still the
fundamental starting point in the international
allocation of jurisdictional competence. See Arrest
Warrant of 11 April 2000 (Dem. Rep. Congo v.
Belg.), 2002 1.C.J. 3, 77-79 (Feb. 14) Goint separate
opinion of Judges Buergenthal, Higgins, and
Kooijamns).° The compelling basis for the rule lies
in the consensual nature of the international legal
system. The starting point of analysis of contested
action in such a system must be a presumption of
permissibility, which can only be overcome if it can
be shown that the action is prohibited by a binding

“Eminent Australian publicists confirm the continuing vitality
of Lotus. Gillian Triggs, International Law: Contemporary
Principles and Practices 434 (2d ed., 2011); I. A. Shearer,
Starke’s International Law 183-184 (11th ed., 1994); D.W.
Greig, International Law 212-213 (2d ed., 1976); D-P.
O’Connell, lJ International Law 601-602 (2d ed., 1970).

treaty, custom, or general principle of law.
Military and Paramilitary Activities in and
against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14,
135 (June 27);° Legality of the Threat or Use of
Nuclear Weapons, Advisory Opinion, 1996 I.C.JJ.
226, 266 (July 8).’°

The Lotus presumption is still apphed by
Australian courts. See XYZ v. Commonwealth
(2006) 227 C.L.R. 532, 576 (Kirby, J.); The Queen v.
Ahmad (2011) 254 F.L.R. 361, rev'd on other
grounds, (2012) 256 F.L.R. 423. It was applied in
the 2002 Arrest Warrant case by the only judges to
address the question of jurisdiction — Judges
Buergenthal (United States), Higgins (United
Kingdom), and Kooijmans (the Netherlands).
These judges quote Lotus at length and conclude
that “while representing the high watermark of
laissez-faire in international relations,” it
continues to serve as the default rule. Arrest

* The Court emphasized that “in international law there are no
rules, other than such rules as may be accepted by the State
concerned, by treaty or otherwise, whereby the... State can be
limited, and this principle is valid for all States without
exception”. Jd. at 135.

‘© Because the Court could not locate a positive rule
prohibiting the threat or use of nuclear weapons in every
circumstance, the Court opined -- albeit with controversy
because lesser limiting rules, acknowledged by the Court, exist
-- that it could not “conclude definitively” whether such threat
or use would be “unlawful in an extreme circumstance of self-
defence, in which the very survival of a State would be at
stake[.]” Id. at 266.

Warrant, 2002 I.C.J. at 78 (Lotus “represents a
continuing potential in the context of jurisdiction .

——

The rule in Lotus, as Judges Buergenthal,
Higgins, and Kooijmans indicate, does not mean
that anything goes in international law —
jurisdictionally or otherwise. Ancient
international norms and the proliferation of more
recent international law — especially the vast
corpus of international human rights, investment
treaties, and trade law — increasingly limit a
state’s permissible range of action.'’ However, it is
plain under the Lotus rule that Australia’s basic
argument in its Sosa and Sarei briefs is backward.

Australia argues that international law does
not permit the exercise of ATS jurisdiction because
the U.S. purportedly cannot bring itself within one
of the recognized basis of international
jurisdiction.’ This, of course, is not what
international law requires and, thus, cannot be
what is required of or by the ATS. Instead, Lotus
and its progeny teach that the burden of proof is on
Austraha to demonstrate conclusively a rule of
international law binding on the U.S. that
prohibits the exercise of jurisdiction under the

'! “States have increasingly used their power to limit their
power ....” Elihu Lauterpacht, Sovereignty — Myth or Reality,
73 Int. Aff. 137, 149 (1997). See also S.S. Wimbledon Case
(U.K. v. Japan), 1923 P.C.1.J. (ser. A) No. 1, at 25 (Aug. 17).
'? Sosa Brief, supra n. 4, at 4-7; Sarei Brief, supra n. 4, at 5-
8.

10

ATS."* This Australia cannot do because a positive
rule of prohibition does not exist.

Amici note the existence of a small number
of contrary arguments by highly respected
international lawyers.'* However these arguments
are often made without reliance on authority and
despite the language and logic of Lotus. Vaughn
Lowe, for instance, claims “it is extremely
improbable that .. . the Court [in Lotus] meant
[what it said].” Lowe also claims it does not appear
states objecting to extraterritorial jurisdiction have
sought to prove a prohibitive rule since the 19""
Century. The more reasonable way to look at
things, of course, is that the Court did indeed mean
what it said. Moreover, it is more likely that
objecting states have not put forward positive
prohibitive rules because, like here, they simply
cannot and must fall back on trying to confuse the
issue. In any event, Lowe ends up adopting the
view that if there is a “linking point” between the
asserting of jurisdiction and the foreign aspect at

'* While ATS jurisprudence clearly requires an ATS plaintiff
to prove that the tort complained of is part of the corpus of
international law, Sosa, 542 U.S. at 725, the rule in Lotus
makes clear that the exercise of ATS jurisdiction is
presumptively valid without more.

‘* Vaughn Lowe, Jurisdiction, in International Law 335-336
(Malcolm D. Evans, ed., 2003). See also F.A. Mann, The
Doctrine of Jurisdiction Revisited After Twenty Years, 186 Rec.
des Cours 19, 33 (1984-II])(calling Lotus old and discredited,
but recognizing that still “it may be ... that international law
cares not about legislative jurisdiction”).

issue “one may presume that the State is entitled
to legislate.” Even if Lowe is correct, as amici
discuss infra, the ATS has the necessary “linking
points” in cases involving gross violations of
human rights.

B. No positive prohibition in
international law restricts the

extraterritorial application of the
ATS

1. No treaty or custom
explicitly prohibits the
exercise of ATS jurisdiction

it is indisputable that no treaty binding on
the U.S. prohibits the exercise of ATS jurisdiction
against foreign defendants for gross violations of
human rights in other states that amount to torts
in violation of international law. Nor does
customary international law contain any such
prohibition.

The litmus test in the formation of a
customary norm prohibiting jurisdiction is the
quantum of state protest. Michael Akehurst,
Jurisdiction in International Law, 64 Brit. Y.B.
Int'l L. 145, 169 (1972-73); Gerald Fitzmaurice,
The General Principles of International Law, 92
Rec. des Cours 1, 73-81 (1957). Here, it does not
appear that any general protest by states over the
exercise of ATS jurisdiction ever took place until
after 2002. Since then, only six states (Australia,

12

Canada, Germany, The Netherlands, Switzerland,
and the United Kingdom) out of over one hundred
and ninety states in the world have bothered to
advance general legal challenges to ATS
jurisdiction’ — as opposed to a few case-specific
diplomatic letters."®

‘° Note too that many states that serve as the principal place
of business for companies that have been ATS defendants have
not protested against the exercise of ATS jurisdiction. For
example, France did not protest about Total S.A. in Doe v.
Unocal, 248 F.3d 915 (9th Cir. 2001). China did not protest
about the China Construction Bank in Liu Bo Shan v. China
Construction Bank, 421 Fed.Appx. 89 (2d Cir. 2011). Neither
Nigeria nor the Netherlands protested about Shell Nigeria or
Shell during the thirteen year span of litigation in Wiwa uv.
Royal Dutch Petroleum Co., 626 F.Supp.2d 377 (S.D.N.Y.
2009). Again, Nigeria did not protest about Chevron Nigeria
Ltd. in Bowoto v. Chevron Corp., 621 F.3d 1116 (9" Cir. 2010).
'© A detailed, but non-exhaustive, search discloses that
Indonesia protested by letter in Doe v. Exxon Mobil Corp., 654
F.3d 11, 59 (D.C. Cir. 2011)(objecting only to “extraterritorial
jurisdiction of a United States Court over an allegation against
an Indonesian government institution"). Canada protested by
letter in Presbyterian Church of Sudan v. Talisman, No. 01
Civ. 9882(DLC), 2005 U.S. Dist. LEXIS 18399, 2005 WL
2082846 (S.D.N.Y. Aug. 30, 2005) (complaining about the
assertion of jurisdiction by U.S. courts over claims against
Canadian companies and individuals over acts that occurred
entirely outside of the U.S.) and filed an amicus brief in the
appeal. Talisman, 582 F.3d 244 (2d Cir. 2009). Balanced
against this resistance are letters favorable to ATS
jurisdiction. Papua New Guinea intervened by letter in the
Sarei v. Rio Tinto case (once in opposition and later a number
of times in favor of the exercise of ATS jurisdiction). See Sarei
v. Rio Tinto Pic, 221 F. Supp. 2d 1116, 1202-03 (C.D. Cal.

13

Jones v. Ministry of the Interior of the
Kingdom of Saudi Arabia, {2007] 1 A.C. 270 (H.L.),
{2007} 1 All E.R. 113, the sole case of which amici
are aware outside of the U.S. questioning certain
extraterritorial aspects of the ATS in dicta, was
really concerned with the immunity of Saudi
officials. It was not litigation against a private
actor as here and did not require consideration of
extraterritorial jurisdiction. Indeed, Mance, L.J.,
in the case below, noted that the jurisdictional
issues were “unargued and unresolved.” [2004]
EWCA Civ 1394, at para. 81.

It is evident no customary rule of
international law prohibits the exercise of ATS
jurisdiction. Absent is the required “extensive and
virtually uniform” protest against ATS jurisdiction
necessary to show “a general recognition that a
rule of law or legal obligation is involved.” North
Sea Continental Shelf Cases (F.R.G. v. Denmark;

2002); Sarei v. Rio Tinto Pic, 650 F. Supp. 2d 1004, 1017-18
(C.D. Cal. 2009). South Africa intervened twice by letter in Jn
re South African Apartheid Litigation twice (once in opposition
to ATS jurisdiction and once again in). Moreover, both the
second South Africa letter and the later PNG letters said that
resolution of the case in US courts would not affect ongoing
peace and reconciliation processes and would in fact be
beneficial for the administration of justice.

14

F.R.G. v. Netherlands), 1969 1.C.J. 3, 41-45 (Feb.
20).""

2. The ATS is not an unlawful
interference in the domestic
affairs of other states

Australia argues that ATS jurisdiction
“interfere[s] fundamentally with other nations’
sovereignty”’’ because it “infringes on the rights of
other states to regulate matters within their
territories” in “conflict with the principles of
international law.”'* Customary international law
does, as Australia says, prohibit one state from
interfering in matters that are essentially within
the domestic jurisdiction of another state. Cf.
Nicaragua Case 1986 I.C.J. at 106.”° Unlawful
interference has taken many forms, ranging from
the use of force to more subtle but insidious
attacks on the political and legal independence of a

'" We recognize that in the Arrest Warrant case, Judges
Higgins, Kooijmans and Buergenthal noted that the “very
broad form of extraterritorial jurisdiction [under the ATS}
{...] has not attracted the approbation of States generally.”
Arrest Warrant, 2002 1.C.J. at 77. However, a customary
rule of prohibition required under the North Sea Continental
Shelf Cases arises not because the assertion of jurisdiction
complained of is endorsed, but because it attracts a
widespread and uniform vocal condemnation.

*® Sarei SCOTUS Motion, supra n. 4, at 8.

'’ Sarei Brief, supra n. 4, at 9.

7° See Article 2(7) of the Charter of the United Nations, 1
U.N.T.S. XVI (Oct. 24, 1945).

15

state.*’ At the most fundamental level, though,
interference is unlawful when one state presumes
to take action in relation to another state’s
domestic jurisdiction in order to alter exclusively
domestic matters legally or politically.

Of course, whether a certain matter is
within the exclusive domestic “jurisdiction of a
state is essentially a relative question; it depends
on the development of international relations.”
Nationality Decrees Issued in Tunis and Morocco,
Advisory Opinion, 1923 P.C.I.J. (ser. B) No. 4, at
24 (Feb. 7).** In addition, jurisdiction that, in
principle, belongs solely to a state may be limited
by other rules of international law. Jd. Matters of
“general international law can no longer be
regarded as essentially falling within domestic
jurisdiction,” especially when it involves an outside
attempt to protect human rights from “gross and
systematic violations.”**

*! See Ellery C. Stowell, Intervention in International Law
322-325 (1921); Philip C. Jessup, A Modern Law of Nations
172-174 (1948).

*2 See An Australian Opinion on Article 15(8) of the Covenant
of the League of Nations, 7 Brit. Y.B. Int'l L. 185 (1926)(J.G.
Latham highlighting uncertainties about whether even
immigration and the White Australia policy were solely
matters of domestic jurisdiction).

*° Felix Ermacora, Art. 2(7), in The Charter of the United
Nations: A Commentary 139, 152-153 (Bruno Simma, ed.,
1995).

16

All states have a well-established legitimate
interest in protecting against gross violations of
human rights anywhere they occur. Judge Philip
Jessup, in his concurring opinion in the South West
Africa Cases (Eth. v. S. Afr.; Liber. v. S. Afr.), 1962
L.C.J. 319, 425-428 (Dec. 21) (Preliminary
Objections), used various minorities treaties, the
Genocide Convention, and the Constitution of the
International Labor Organization to show “the
right of a State to concern itself, on general
humanitarian grounds, with atrocities affecting
human beings in another country.” Jd. at 425.
Judge Jessup went on to emphasize that “[t]he fact
which this case establishes is that a State may
have a legal interest in the observance, in the
territories of another State, of general welfare
treaty provisions and that it may assert such
interest without alleging any impact upon its own
nationals or its direct so-called tangible or material
interests.” Jd. at 428. This legal interest of all
states in the observance of human rights has been
notably supported by publicists worldwide,” and

*4 International Law Commission, Articles on the
Responsibility of States for Internationally Wrongful Acts,
U.N. GAOR, 56th Sess., Supp. No. 10 at 110-11, U.N. Doc.
A/56/10 (2001) (“all states have a legal interest” in the
protection of human rights); U.N. Human Rts. Comm., Gen.
Comment No. 31 [80] The Nature of the General Legal
Obligation Imposed on States Parties to the Covenant, at
para. 2, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (May 26, 2004);
Institut de Droit International, 63 Annuaire de l'Institut de

17

the doctrine is supported in Filartiga v. Pena-Irala,
630 F.2d 876, 881 (2d Cir. 1980) (U.N. Charter
“makes it clear that... a state’s treatment of its
own citizens is a matter of international concern”).

Judge Jessup’s recognition of the legal
interest of all states in the prevention and remedy
of gross human rights violations is expressed today
as a right erga omnes. See Restatement (Third) of
the Foreign Relations Law of the United States §
702 & cmt. o. (1987)(“gross violations of
internationally recognized human rights” . . . “are
violations of obligations to all other states and any
state may invoke the ordinary remedies available
to a state when its rights under customary law are
violated”). The erga omnes legal interest of all
states in the prevention and remedy of gross
violations of human rights by any other state is
well established. See, e.g., Barcelona Traction,
Light and Power Co. Ltd. (Belg. v. Sp.), 1970 1.C..
3, 32 (Feb. 5); Armed Activities on the Territory of
the Congo (Dem. Rep. Congo v. Uganda), 2005
1.C.J. 168, 349-350 (Dec. 19) (separate opinion of
Judge Simma); Nuclear Weapons Opinion 1996
1.C.J. at 257 (July 8); East Timor (Port. v. Austl.),
1995 I.C.J. 90, 102 (June 30). See also Siderman

Droit International (1989)-II, at 286 & 288-289. See also
Myres S. McDougal, et al., Human Rights and World Public
Order: The Basic Policies of an International Law of Human
Dignity 313-323 (1980).

18

de Blake v. Republic of Argenting, 965 F.2d 699,
715 (9th Cir. 1992); Kane v. Winh, 319 F.Supp.2d
162, 196 n.45 (D. Mass. 2004); R. v. Immigration
Officer at Prague Airport, [2004] UKHL 55, para.
46 (Steyn L.J.).

The legal conclusion tied to the right of every
state to concern itself with human rights violations
is straightforward. It is certain every state,
including the U.S., has a right to be concerned
about gross violations of human rights (that are
also torts) wherever they occur. This legitimate
concern renders unavailing the worn out objection
that the manifestation of such concern by other
states is an unlawful interference in the domestic
jurisdiction of the state where those abuses are
taking place.

Naturally, international law does not require
any specific means of remedy, but a universal right
of states to provide one has been convincingly
demonstrated in cases of gross human rights
abuses that are torts.” More to the point, though,

*© See Cedric Ryngaert, Universal Tort Jurisdiction Over
Gross Human Rights Violations, 38 Neth. Y.B. Int] L. 3
(2007)(universal civil jurisdiction is permissible). See also
Restatement (Third), supra, at § 404, cmt. b (“international
law does not preclude the application of non-criminal law on
ja universal] basis, for example, by providing a remedy in
tort”); International Law Association, Final Report on the
Exercise of Universal Jurisdiction in Respect of Gross
Human Rights Offenses 2-3 (2000); Robert Jennings &

19

under Lotus the rule against interference in
essentially domestic jurisdiction that Australia
puts forward does not prohibit the exercise of ATS
jurisdicticn because it simply does not apply. All
states have a significant legal interest in ensuring
the protection against gross violations of human
rights everywhere.

3. The exercise of ATS adjudicatory
jurisdiction is reasonable

Finally, Australia claims that the assertion
of ATS jurisdiction will create “a substantia! risk of
jurisdictional conflicts”” because it is not
“compatible with the exercise of jurisdiction by
other states.””’ While this may be a concern to be
addressed through lis pendens conflicts rules in the
future if more states adopt ATS-type jurisdiction
(as is to be hoped), it remains a hypothetical
problem now. More importantly, concurrent
international jurisdiction is not uncommon and is
not a bar to its exercise. See Trujillo v. Conover &
Co. Communs., Inc., 221 F.3d 1262, 1265 (11th Cir.
2000); Goldhammer v. Dunkin' Donuts, Inc., 59 F.
Supp. 2d 248, 252-253 (D. Mass., 1999); Cont'l Cas.
Co. v. Axa Global Risks (UK) Ltd., 2010 U.S. Dist.
LEXIS 32850, *11-*13 (W.D. Mo.); See also Re

Arthur Watts, Oppenheim's International Law, 469-70 (9th
ed., 1996).

*° Sarei Brief, supra n. 4, at 1.
*? Sosa Brief, supra n. 4, at 4.

20

Colonel Aird; Ex parte Alpert, (2004) 220 C.L.R.
308, 348 (Kirby, J.); XYZ v. Commonwealth, (2006)
227 C.L.R. 532 (Kirby, J.).

Still, Australia’s jurisdictional compatibility
concerns do raise a different potential rule of
prohibition in relation to ATS jurisdiction under
the Lotus principle. As Judge Fitzmaurice in the
Barcelona Traction case stated:

international law does not impose hard and
fast rules on States delimiting spheres of
national jurisdiction . . . but leaves to States
a wide discretion. It does however (a)
postulate the existence of limits... ; and (b)
involve for every State an obligation to
exercise moderation and restraint as to the
extent of the jurisdiction assumed by its
courts in cases having a foreign element, and
to avoid undue encroachment on a
jurisdiction more properly appertaining to,
or more appropriately exercisable, by
another state.

Barcelona Traction, Light and Power Co. (Belg. v.
Spain) 1970 1.C.J. 3, 105 (Feb. 5) (Separate
Opinion of Judge Fitzmaurice)

This is similar to the position taken by the
Restatement, which indicates the exercise of
jurisdiction must be “reasonable” in order to be

21

lawful under general international law.
Determining reasonableness requires a process of
assessment that considers the relative importance
of the link(s) between the state asserting
jurisdiction and the individual, the legitimate
expectations of those affected, and the likelihood of
conflict with other states. See F. Hoffman LaRoche
Ltd v. Empagran, S.A., 542 U.S. 155, 164-165
(2004).** Moreover, tiie reasonableness test applies
on a case-by-case basis and cannot serve as a
general bar to the extraterritorial application of
the ATS. See In re Alstom SA, 406 F.Supp.2d 346,
385, 396-397 (S.D.N.Y. 2005) (finding both
reasonable and unreasonable extraterritorial
jurisdiction present in the same case). While these
factors tend toward the malleable, their
application here confirms ATS jurisdiction will be
reasonable in almost all cases.

Australia argues, in essence, that under the
ATS it is unreasonable for the U.S. to exercise
jurisdiction over “matters, persons or things with
which it has absolutely no concern.” See Trustees
Executors and Agency Co. Ltd. v. Federal
Commissioner of Taxation, (1939) 49 C.L.R. 220,

** Restatement (Third), supra, at §§ 403(1) and 421(1). See
also Andreas F. Lowenfeld, Public Law in the International
Arena, 163 Rec. des Cours 311, 328-329 (1979-IT).

*® See also Oscar Schachter, International Law in Theory and
Practice 256-261 (1991).

N
ti

239 (Evatt, J.) Australia points out that ordinarily
ATS actions involve disputes between aliens, based
on activities in other states. The argument,
however, easily fails for the same reasons related
to the claim of domestic interference above.
Whatever may have been said in 1933 about gross
violations of human rights when Justice Evatt
wrote, it is certain today that no state has
“absolutely no concern” in this realm. Instead, as
demonstrated, all states have a strong legitimate
and legal interest in remedying gross violations of
human rights no matter where they occur. It is
commonplace that states “have concerned
themselves with the condition of human rights in
other countries” and “accepted that human rights
are of international concern .... Every country has
at one time or another made human rights in some
other country its own business, and has thereby
accepted that human rights at home are someone
else’s business.” Louis Henkin, The Age of Rights
25, 29 (1990).

Il. Australia legally asserts and projects
extraterritorial jurisdiction in ways
akin to the ATS

Amici begin by pointing out that arguments
advanced by Australia against the international
legality of ATS extraterritorial jurisdiction are
belied by Australia’s own legislative assertions and
judicial projections of jurisdiction beyond its

23

borders. It is disingenuous for Australia to claim
that the ATS is not permitted by international law
when Australia can and does legally assert and
exercise extraterritorial jurisdiction in ways that
are remarkably similar. Indeed, in studying
Australian examples, amici find support for (not
opposition to) ATS jurisdiction.

A. Australia exercises broad
constitutional legislative
jurisdiction over matters
geographically external to
Australia

Like the U.S., Australia is a federation in
which the national government is a government of
constitutionally limited and express powers.”
While the U.S. Constitution does not expressly
confer a power over “foreign affairs” on the federal
government, the same is not true in Australia.
Section 51(xxix) of the Australian Constitution
specifically provides that “the Parliament shall . ..
have power to make laws... with respect to...
external affairs.” Commonwealth of Australia
Constitution Act 1900 (Imp) 63 & 64 Vict, c. 12, § 9.

Commonwealth authority over external
affairs confers broad federal powers. It consists of

” John Quick & Robert Garran, The Annotated Constitution of
the Australian Commonwealth § 52, at 385 (1901).

24

at least three legislative aspects,”’ but for present
purposes it suffices to highlight that it includes the
power to make laws with respect to any matter,
person, or thing that is geographically external to
Australian territory. New South Wales v.
Commonwealth, (1975) 135 C.L.R. 337;
Polyukhovich v. Commonwealth, (1991) 172 C.L.R.
501;*° Horta v. Commonwealth, (1994) 181 C.L.R.
183, 194;°* XYZ v. Commonwealth, (2006) 227
C.L.R. 532. This feature of the Australian
external affairs power provides constitutional
potential for Australia to legislate extraterritorial
jurisdiction in ways similar to the U.S. Congress.

In Victoria v. Commonwealth, (1996) 187
C.L.R. 416, a majority of six of the seven justices of
the High Court of Australia emphasized:

The modern doctrine as to the scope of the
power conferred by s 51(xxix) was adopted in
Polyukhovich v. The Commonwealth.

3) See Leslie Zines, The High Court and the Constitution 377-
410 (5th ed., 2008).

*? 135 C.L.R. (per Barwick, J., at 360; Mason, J., at 471; Jacobs,
J., at 497; Murphy, J., at 504).

* 172 C.L.R. (per Dawson, J., at 632; Mascon, C.J., at 528-531;
Dean, J., at 599-603; Guadron, J., 695-696; McHugh, J., at
712-714).

** A unanimous per curiam opinion.

*© 227 C.L.R. (per Gleeson, C.J., at 538-539; Gummow, Hayne
& Crennan, JJ., At 546-548).

25

Dawson J expressed the doctrine in these
terms:

[T]he power extends to places,
persons, matters or things physically
external to Australia. The word
‘affairs’ is imprecise, but is wide
enough to cover places, persons,
matters or things. The word ‘external’
is precise and is unqualified. If a
place, person, matter or thing lies
outside the geographical limits of the
country, then it is external to it and
falls within the meaning of the phrase
‘external affairs.”

Similar statements of the doctrine are
to be found in the reasons for
judgment of other Justices .... They
must now be taken as representing
the view of the Court.

Id. at 485 (footnotes omitted). Under established
constitutional arrangements, then, it appears
Australia has an unlimited constitutional power to
prescribe in relation to everyone in the world, any
place in the world, concerning anything in the
world.* Indeed, this is a position Australia

—— _ ——_ -—

*° While the clear majority position is that the
geographically external aspect of the external affairs power
requires no nexus to Australia, some minority opinions
would require a nexus between the external matter and

26

seemed to advance in Polyukhovich, 172 C.L.R., at
503-504 (argument on behalf of the
Commonwealth Director of Public Prosecutions).

It is true that Australia (like the U.S.) can
constitutionally legislate in excess of the limits of
international law.*’ However, as shown, cases of
extraterritorial reach under the ATS (and like
Australian situations discussed below) are within
what is permitted by international law under
Lotus and are not otherwise prohibited by
international law. Within these same limits, it is
certain Australia possesses the prescriptive power
to enact legislation identical to the ATS. Indeed,
amici note that Australia approached this point
with the Corporate Code of Conduct Bill 2000 (Cth)
(Corporate Code). The Corporate Code would have

ee a

Australia. Polyukhovich, 172 C.L.R. at 552 (Brennan and
Toohey, JJ.). It should also be noted that the issue of
whether a nexus to Australia is required has been
intentionally bypassed by two High Court decisions since
Polyukhovich. Horta, 181 C.L.R. at 194; XYZ, 227 C.L.R. at
538-539 (Gleeson C.J.). See also XYZ, id. at 566-571 (Kirby,
J.) (indicating difficulties with geographic externality
principle); id., at 598-604 (Callinan and Heydon JJ.)
(rejecting the principle outright).

*” Compare United States v. Yousef, 327 F.3d 56, 86 (2d Cir.
2003) (Congress “may legislate with respect to conduct outside
the United States in excess of limits posed by international
law”), with Horta, 181 C.L.R. at 195 (nothing requires that
Australia’s “legislative power . .. be confined within the limits
of... international law”).

27

imposed Austrahan Law, including human rights
standards, on the activities of Australian
multinationals taking place in the sovereign
territory of other states.** Never once was the
jurisdictional legality of the Bill questioned by the
Government.” However, a lack of political will to
pass the measure — not international legal
obstacles — meant that it lapsed.

B. Statutory examples of broad
extraterritorial jurisdiction

The following legislative examples
demonstrate that Australia exercises prescriptive
jurisdiction over activities in the sovereign
territory of other states (as well as over non-
Australians beyond Australian territorial
jurisdiction).“° This exercise of extraterritorial
jurisdiction mimics that which Australia complains
about in the ATS. The double standard puts the

Corporate Code at clause 10, available at
http://www.comlaw.gov.au/Details/C 2004B01333 (last accessed
June 2, 2012).

* Parliamentary Joint Committee on Corporations and
Securities, Report on the Corporate Code of Conduct Bill
2000, c. 4, para. 4.49 (noting only possible extraterritorial
‘resentment’, not illegality), June 2, 2012).

*° See also Anti-Money Laundering and Counter-Terrorism
Financing Act 2006 (Cth), § 26(1); Australia Act 1986 (Cth), §
2(1); Australian Securities and Investment Commission Act
2001 (Cth), § 12AC; Family Law Act 1971 (Cth), §31(2);
Migration Act 1958 (Cth), Division 12; Surveillance Devices Act
2004 (Cth), Part 5; Trade Practices Act 1974 (Cth), § 5(1).

28

Australian complaints in an unfavorable light and
makes it difficult to take the complaints at face
value.

It should be emphasized again, however,
that the Australian legislative examples here are
permissible under the Lotus principle. Moreover,
such legislation has been enacted in the legal belief
that its extraterritorial reach does not offend
international law because in Australia “there is a
prima facie presumption that the legislature does
not intend to derogate from international law.”*’
Polities v. Commonwealth, (1945) 70 C.L.R. 60, 68-
69 (Latham C.J.), 77 (Dixon, J.), 79 (McTiernan,
J.), 81 (Williams, J.).

1. Migration Act 1953 (Cth)

In The Queen v. Ahmad (2011) 254 F.L.R.
361, rev'd on other grounds, (2012) 256 F.L.R. 423,
the accused was charged under section 232A of the
Migration Act 1953 (Cth) (now repealed and
replaced for reasons other than international law
deficiencies). Under the Act, the accused was
prosecuted for “people smuggling” by attempting to
“facilitate” the entry into Australia of 49 non-
citizens without valid visas by boat. The terms of
the Act make clear its application “outside

“' Sir Anthony Mason, International Law as a Source of Law
in Domestic Law, in Brian R. Opeskin & Donald R. Rothwell,
eds., International Law and Australian Federalism 220
(1997).

29

Australia.” It was undisputed that the defendant’s
boat had been intercepted and boarded by
Australian Customs beyond of Australia’s
territorial sea and contiguous zone, where
international law provides for freedom of
navigation and the exclusive jurisdiction of the flag
state prevails. In relation to the acts of
“facilitation,” it was argued by the accused that
extending the prescriptive jurisdictional reach of
section 232A beyond the contiguous zone conflicted
with Australia’s international obligations. The
court rejected any bar to the exercise of jurisdiction
by Australia in criminalizing extraterritorial
facilitation. In doing so, the court cited Lotus to
support Australia’s “almost unlimited prescriptive
jurisdiction ...save... there may be international
obligations accepted by the state to limit its
competence.” Id. at 21. The Court found none.

2. Criminal Code Act 1995
(Cth)(Criminal Code),
Division 268”

Division 268 of the Criminal Code
establishes the crimes of genocide, crimes against
humanity, and war crimes. Under section

* See also Division 115 of the Criminal Code. Division 115
asserts jurisdiction over the conduct of every person in the
world (who is not an Australian or resident of Australia), in
every state in the world outside Australia, for offences against
Australians.

30

268.117(1), these crimes engage the widest
jurisdiction possible under the Code — Category D
jurisdiction under section 15.4. Together these
provisions make it clearly possible to prosecute
cases in which there is no nexus to Australia
because, in combination, the legislation applies to
anyone in the world, for conduct anywhere in the
world, in relation to any victim regardless of
nationality. Moreover, no foreign law defence is
permitted. And, by virtue of section 12.1, the
Division applies to the activities of corporations. *°

When the Australian Joint Standing
Committee on Treaties was considering Australian
ratification of the Rome Statute of the
International Criminal Court and the necessary
implementing legislation, it confirmed that
Division 268 was intended to confer Australian
courts with universal jurisdiction.** The
Committee went on to note that “the principle of
universal jurisdiction of international human

——————

* Division 268 may have been the basis for Australian Federal
Police investigations into the Australian Anvil Mining
company in the Congo. See Joanna Kyriakakis, Australian
Prosecution of Corporations for International Crimes, 5 Int'l
Crim. Just. 809 (2007).

** Joint Standing Committee on Treaties, Report 45 — The
Statute of the International Criminal Court 16-20 (May
2002),available at
http://www.iccnow.org/documents/AustralialCCReport45.pdf
(last accessed June 9, 2011).

31

rights law, regardless of nationality, is not without
precedent.”*

Unlike the ATS, Division 268 concerns
criminal jurisdiction. However, the analogy is still
pertinent. Under Division 268, Australia is
prepared, under the Lotus principle and universal
jurisdiction, to insert itself into the sovereign
territory of other states in order to remedy gross
violations of human rights against non-
Australians, committed by non-Australians
(including corporations). Yet, at the same time
Australia complains about an essentially identical
assertion of U.S. jurisdiction form on the civil side,
which is seen as less intrusive and abrasive. Given
Division 268 of the Criminal Code, the complaint
should be seen as baseless.

3. Environmental Protection
Biodiversity Conservation
Act (1999) (Cth) (EPBC Act),
sections 27B, 27C, and Chap.
5A

By virtue of the EPBC Act, Australia asserts
jurisdiction in the sovereign territory of other
states over acts by non-Australians. Section
27B(1) of the EPBC Act provides that unless
otherwise permitted, “[a] person must not take
outside the Australian jurisdiction an action that

* Id. at 93.

32

has, will have or is likely to have a significant
impact on the environment in a Commonwealth
Heritage Place outside the Australian jurisdiction.”
A breach of section 27B entails a civil penalty.”
“Person” presumably includes any person in the
world, including non-Australian nationals,“ but
under section 341C(2) of the Act, in order to be
listed, places outside the Australian jurisdiction
must be owned or leased by the Commonwealth.
There are no Commonwealth Heritage Places
currently listed outside the Australian jurisdiction
and Parliamentary debates disclose some
jurisdictional unease.**

However, Australia has also established a
List of Overseas Places of Historic Significance to
Australia. EPBC Act, chap. 5A. The list
demonstrates an Australian “symbolic” interest in
sites located in the territory of other countries.
Thus far under the Act, Australia has listed sites
in Turkey, Papua New Guinea, and the United
Kingdom.*’ While these particular places have

*© Section 27C of the EPBC Act creates a criminal offence for
the same action.

*” See Acts Interpretation Act 1901 (Cth), § 2C.

** See, e.g., Commonwealth, Parliamentary Debates, House of
Representatives, 18 October 2006, 127 (Mr. Albanese).

*” A diligent search failed to disclose any treaty between
Australia and a state in which an Australian overseas place
of historic significance is located that allows for this
jurisdictional reach. The list includes Anzac Cove in

Turkey, the Kokoda Trail in Papua New Guinea, and the

33

undoubted significance for Australia, it is not clear
that other states will always appreciate this
significance or the jurisdictional intrusion. Yet,
Australia is of the view that the List of Overseas
places is in accordance with international law
because it is “respectful of the rights and
sovereignty of other nations.””°

4. Export Control (Animals)
Order 2004 (Cth) (ECO),
section 242A

Australia has been at the fore of animal
welfare for a number of years.”' According to the
Australian Department of Agriculture, Fisheries
and Forestry (DAFF), “Australia is the only
country that requires specific animal welfare
outcomes for livestock exports.””’ The Australian
Position Statement on the Export of Livestock,
contained in the most recent Australian Standards

Howard Floreys Laboratory in the United Kingdom. See
Department of Sustainability, Environment, Water,
Population and Communities, List of Overseas Places of
Historic Significance to Australia, available at
www.environment.gov.au/heritage/places/overseas (last
accessed June 2, 2012).

© Id.

*! See generally Alex Bruce, Animal Law in Australia: An
Integrated Approach (2012).

* DAFF, Live Animal Export Trade (May 18, 2012), available
at http://www.daff.gov.au/animal-plant-health/welfare/export-
trade (last accessed June 3, 2012).

34

for the Export of Livestock, indicates that Australia
will use its position as a livestock exporter as an
“opportunity to influence change and improve
animal welfare condition in... export
destinations.””

In June 2011, Australia suspended live
cattle exports to Indonesia for slaughter after the
prevalence of animal welfare abuse in some
abattoirs became apparent. Following
consultations with exporters, Australian
regulations for the live animal export trade,
including the ECO, were amended to require
greater exporter accountability for protection
through the supply chain up to the point of
overseas slaughter.

Section 2.42A(2) was added to the ECO
(which contains standard conditions that must be
included in all export licences) to require
Australian exporters to provide written supply
chain assurances about animal welfare. The
requisite assurance must include documentation
that provides evidence that the exporter has

*’ Australian Standards for the Export of Livestock (Version
2.3) 2011, at 17, available at
http://www.daff.gov.au/__data/assets/pdf_file/0010/1904365/
australian-standards-v2.3.pdf. See also DAFF, Exporter
Supply Chain Assurance System (ESCAS), available at:
http://www.daff.gov.au/agis/export/live-
animals/livestock/escas (last accessed June 2, 2012).

35

control of animal welfare through the entire supply
chain, including welfare conditions of handling and
slaughter in other countries.‘ Australian
exporters must provide evidence that livestock will
be handled in importing countries in accordance
with animal welfare guidelines established by the
World Organization for Animal Health (OIE).
Section 2.42A(2)(v) of the ECO requires
independent auditing and reporting of livestock
welfare throughout the supply chain, including
independent auditing of conditions of handling and
slaughter in other countries.

It seems readily apparent that Australia,
through section 2.42A, is projecting its legal
concern about the humane handling and slaughter
of livestock into the practices and regulatory
frameworks of other states. It seeks to do so by
way of international standards and reliance on
individual exporters. These same things can be
said about the ATS. The ATS exhibits a legitimate
concern by the U.S. over gross human rights
violations in other states. It does so by reference to

* ECO, available at
http://www.comlaw.gov.au/details/F2012C00134 (last
accessed June 2, 2012).

°° DAFF, Guidance on Meeting OIE Code Animal Welfare
Outcomes for Cattle and Buffalo Version 2.2 (Aug. 20, 2011).
Cf. Caley Otter, Siobhan O'Sullivan and Sandy Ross, Laying
the Foundations for an International Animal Protection
Regime, 2 J. Animal Ethics 52 (2012).

36

international standards (i.e. international norms
that are also torts) and relies on individuals for
implementation. It is clear, however, that
Australia considers ECO compliant with
international law (although it has bolstered its
position by entering MOUs with importing states —
something not required by ECO.)

C. Adjudicatory Jurisdiction

In addition to an extraterritorial legislative
reach, Australia has not infrequently exercised
extraterritorial jurisdiction though adjudication,
including the extraterritorial use of tort.°’ The
exercise of Australian jurisdiction has commonly
been extended beyond national frontiers to
territories of sovereigns other than Australia.
Three limited examples will serve to demonstrate
Australia’s projection of adjudicatory jurisdiction is
a way similar to the ATS. |

In Dow Jones & Co. v. Gutnick, (2002) 210
C.L.R. 575, Gutnick sued Dow Jones in relation to

* See Australian Position Statement on the Export of
Livestock (Nov. 2006).

* Vedna Jivan & Christine Forster, Making the
Unaccountable Accountable: Using Tort to Achieve Corporate
Compliance with Human Rights Norms, 15 Torts L.J. 263,
263-264 & n. 2 (2007) (discussing Australian actions arising
from alleged torts committed outside of Australia by
subsidiaries of mining companies headquartered in
Australia).

37

alleged defamatory statements made by Dow Jones
in the web version of its publication, Barron's
Digest. Gutnick chose to sue in Australia, because
he resided in Melbourne. The article, however,
was authored in New York and placed on a web
server in New Jersey. It was only accessible, no
matter where in the world, for a fee paid to
Barron’s Digest, a publication concerning
principally the U.S. economy and markets. The
uploaded statements were protected free speech
under the U.S. Constitution (and otherwise legal).

In ruling on a challenge to jurisdiction, the
High Court held that an action for defamation will
arise in the place where the damage (to reputation)
occurs and allowed the action to proceed. It follows
that an Australian court may apply non-Australian
law applicable to conduct (including customary
international law if required),** to hear a claim
against a foreign company, for damage suffered in
a foreign country. Indeed, jurisdiction may well lie
in all the countries where access to that website

** Alternatively, the government could incorporate
customary international law into Australian law for the
purpose of enforcement. In this context, the Australian
government argued in Polyukhovich, that section 9 of the
War Crimes Act 1945 (Cth) —unaer which Polyukhovich was
prosecuted for acts as a non-Australian, outside of Australia,
against non-Australians — was constitutionally valid
because it discharged “an obligation incurred by Australia
under customary international law.” 172 C.L.R. at 504.

38

can be obtained,” just as civil jurisdiction may lie
in all states wishing to provide civil remedies for
gross human rights violations based on each states’
legal interest in the observance of human rights
everywhere. International law does not prohibit
such a result.

In Regie National Des Usines Renault SA v.
Zhang, (2002) 210 C.L.R. 491, the High Court held
that Australian long arm jurisdiction was properly
exercised over two French corporations, not
registered in Australia, in an automobile product
liability action commenced in Australia. The claim
arose as a result of an automobile accident in New
Caledonia (the courts of which are part of the
French judicial system in which French law
applies). The plaintiff, an Australian permanent
resident, alleged that the injuries he suffered in
the accident were the result of negligent design by
the French corporations. Even though the High
Court held that French law applied, it ruled that
the Australian proceedings should not be stayed
and transferred to New Caledonia. In the court’s
view a stay of proceedings would only be
appropriate if the Australian court was a “clearly
inappropriate forum,” and it was not here.

%® See Brian Fitzgerald, Dow Jones & Co Inc v Gutnick:
Negotiating 'American Legal Hegemony’ in the Transnational
World of Cyberspace, 27 Melb. U.L.R. 590, 591 (2003).

39

In Re Maritime Union; Ex parte CSL Pacific,
(2003) 214 C.L.R. 397, a unanimous High Court
held that section 5(3) of the Workplace Relations
Act 1996 (Cth) was a valid enactment under s 51(i)
of the Constitution (the trade and commerce
power) and allowed the Australian Industrial
Relations Commission to assume jurisdiction over
industrial matters pertaining to the relationship
between employers and maritime employees so far
as those matters relate to trade or commerce
between Australia and a place outside Australia.
The High Court ruled that it did not matter that
neither the employer nor the employees were
residents of Australia, nor that the contracts of
employment were made outside Australia (and
presumably governed by foreign law).

Several lessons can be gleaned from these
cases and others. See also XYZ, 227 C.L.R. 532;
Polyukhovich, 172 C.L.R. 501; R v. Halton; Ex
parte AUS Student Travel Pty. Ltd., (1978) 138
C.L.R. 201; Birmingham University and Epsom
College v. Commissioner of Taxation, (1938) 60
C.L.R 572; Gagarimabu v. BHP Ok Tedi, [2001]
V.S.C. 304 (27 Aug.); Gagarimabu v. Broken Hill
Proprietary Co. Ltd., (2001) V.S. Ct. 517. The most
important lesson, though, is that Australian courts
exercise jurisdiction over non-nationals in relation
to actions and events in the territory of other
states and beyond its national jurisdiction. The
lesson is important because it allows for an ATS

40

comparison. When the comparison is made, it
seems evident that Australia does what it
complains should not be done.

CONCLUSION

This is an easy case. The Court is called
upon to confirm the long-standing application of
extraterritorial jurisdiction under the ATS. The
case provides an opportunity to add lustre to the
venerable U.S. judicial tradition in which the
courts are seen to serve as a “guard” of “the rights
of individuals” and a “bulwark” against powerful
interests. The Federalist No. 78 (Alexander
Hamilton). It provides an opportunity to prove
what this Court said in a different context — that
“(a] right secured by the law of nations to...
people, is one that the United States... [is} bound
to protect.” United States v. Arjona, 120 U.S. 479,
487-88 (1887).

This case is a vehicle by which to seize these
opportunities not as a court for the world but asa
leader among courts in all countries with equally
legitimate concerns and potential concurrent
jurisdiction to see justice done in cases of gross
human rights abuses in violation of international
law. This Court should reverse the United States
Court of Appeals for the Second Circuit in this
matter.

41

DATED: June 12, 2012

Respectfully submitted,
/s/ Donald Kris Anton
Donald Kris Anton

Counsel for Amicus Curiae

THE AUSTRALIAN NATIONAL
UNIVERSITY COLLEGE OF LAW
Canberra, ACT 0200
Australia

O11 61 2 6125 3516

Counsel for amicus curiae

42

APPENDIX

LIST OF J IAE AUSTRALIAN
INTERNATIONAL LAW SCHOLARS

Professor Donald K. Anton
Associate Professor of Law

The Australian National University
College of Law

Fellows Road

Canberra, ACT 0200 AUSTRALIA

Professor Susan Breau
Professor of International Law
School of Law

Flinders University

Adelaide, SA 5001 AUSTRALIA

Dr. Emily Crawford

Post-Doctoral Research Fellow
University of Sydney Law School
Sydney Centre for International Law
Sydney, NSW 2006 AUSTRALIA

Dr. Alice de Jong

Senior Lecturer in Law

Monash University

Dept. of Business Law and Taxation
Wellington Road

Clayton, VIC 3800 AUSTRALIA

A-]

Professor Sarah Joseph

Director, Castan Centre for Human Rights Law
Monash University

Faculty of Law

Wellington Road

Clayton, VIC 3800 AUSTRALIA

Professor David Kinley
Professor of Human Rights Law
University of Sydney Law School
Sydney, NSW 2006 AUSTRALIA

Dr. Joanna Kyriakakis
Lecturer in Law

Monash University

Faculty of Law

Wellington Road

Clayton, VIC 3800 AUSTRALIA

Justine Nolan

Senior Lecturer in Law

Deputy Director, Australian Human Rights Centre
University of New South Wales, Faculty of Law
Anzac Parade

Kensington, NSW 2052 AUSTRALIA

Professor Tim Stephens

Associate Professor of Law

Co-Director, Sydney Centre for International Law
University of Sydney Law School

Sydney, NSW 2006 AUSTRALIA

A-2

Matthew Zagor

Senior Lecturer in Law

The Australian National University
College of Law

Fellows Road

Canberra, ACT 0200 AUSTRALIA

A-3

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0700%3A060. Public record. Not legal advice.