After hearing oral argument on this issue in February 2012, the Supreme Court ordered further briefing on the issue of extraterritoriality. Oral argument has been set for Monday, October 1, the first day of the Court's 2012 Term.
For this new round of briefing and argument, I wrote the Brief of Amici Curiae Comparative Law Scholars and French Supreme Court Justice in Support of Petitioners on the Issue of Extraterritorial Jurisdiction, which treats the issue from a comparative law perspective.
I was honored that two other Int Law Grrls, Mireille Delmas-Marty, emerita holder of the Chair of Comparative Law and Internationalization of Law at the Collège de France de Paris
The brief, available in full here, seeks to respond to a concern articulated by several justices at the February oral argument: namely, that the United States would be in violation of international law by allowing extraterritorial application to the ATS because it would be the only country to have recognized civil liability for grave human rights violations committed outside of the forum country.
The brief argues that universal criminal jurisdiction for jus cogens violations in civil-law nation-states is analogous to extraterritorial civil jurisdiction under the ATS.
Unwarranted similarities between “criminal” and “civil” law in both legal orders have been assumed erroneously, because both civil- and common-law systems have the same two classifications. They have significantly different meanings and functions in the different legal orders, however. Tort law in the United States is more similar in many ways to civilian criminal law than to civilian civil law:
► Civilian criminal law and United States civil law have comparable functions because of the roles of judges, prosecutors, and lawyers in the respective legal orders and societies, and because of the methods for victims to initiate legal actions in the criminal courts of civilian states, and in tort lawsuits in the United States.
Civilian judges specialize in either criminal or private law, with criminal-law judges in civilian States having a more didactic, public role than their private-law counterparts. Civilian prosecutors traditionally are nonpartisan, neutral figures. Criminal trials, which include those that arise under universal jurisdiction, are public, and organized around a concentrated, oral event. Tort trials in civilian states, on the other hand, often take place exclusively in writing, with no oral testimony, and giving the public no opportunity to witness them. Where victims in civilian states join criminal trials as civil parties, they benefit from the state’s resources and can be compensated financially. By contrast, in a tort suit, they would be barred from contingency fee arrangements and class action suits, so civil actions would not be an effective option for many.
► Conversely, the aspects of criminal trials in civilian states which render extraterritorial or universal criminal jurisdiction appropriate in those legal systems do exist in United States tort law: both are aired in public; both allow victims effective access to the court system; and both allow victims financial compensation.
Although civilian states traditionally have rejected prosecutorial discretion, they have tended to adopt it to varying degrees for universal jurisdiction cases in the interests of international harmony. Similarly, in ATS cases, the act of state doctrine and the Foreign Sovereign Immunities Act restrain undue ATS extraterritorial jurisdiction.