24 Austl. Int'l L.J. 15 (2018)
Outdated and Unhelpful: The Problem with the Comity Principle and Act of State Doctrine

handle is hein.journals/austintlj2018 and id is 21 raw text is: 




15


OUTDATED AND UNHELPFUL:THE PROBLEM

WITH THE COMITY PRINCIPLE AND ACT OF STATE

DOCTRINE

DANIELLE IRELAND-PIPER*






                                        Abstract

      The  temptation in troubled times is to stretch the reach of power and authority. While
      this may, in some circumstances, be a reasonable response to issues with global and
      transnational dimensions, exercises of extraterritorial jurisdiction can provide the means
      by  which such power  becomes  unchecked. This can be seen in the decision of the
      High  Court of Australia in PlaintiffM68/2015 v Minister for Immigration and Border
      Protection, the effect of which was that the Commonwealth's extraterritorial conduct
      was not subject to the same checks and balances as would its domestic conduct. For this
      reason, the way in which courts adjudicate on extraterritoriality is important. Declining
      to adjudicate exercises of State power on the basis of comity and the act of state doctrine
      is an outdated and unhelpful response to the interconnectedness of legal regulation in
      the 21st century. In that context, I make three arguments: First, the comity principle and
      act of state doctrine are both unsatisfactory tools in the adjudication of extraterritoriality
      and  ought to be abandoned. Second, the abuse of rights doctrine as it is understood in
      international law and the principles of State responsibility may be usefully 'transplanted'
      into the domestic domain when adjudicating on exercises of extraterritorial power by the
      state. And, third, the integration of international law doctrine into domestic public law
      contexts with dualist approaches can be characterised as a type of legal transplant. In so
      doing, I propose an additional formulation of the abuse of rights doctrine as it relates to
      the adjudication of extraterritorial jurisdiction.




I      INTRODUCTION
In troubled  times, governments   may  seek to control actions occurring  outside the nation
State. This may  be in response  to treaty obligations obliging or permitting extraterritorial
regulation, such as many treaties relating to transnational crime do. It may also be an attempt
to unilaterally impose foreign policy objectives. In any event, the principles of jurisdiction
are generally permissive  at customary   international law, and  some  treaties permit, even
oblige, the assertion of extraterritorial authority.' It often falls, then, to domestic courts to


   Associate Professor, Faculty of Law, Bond University.
   See for example, Convention on Combating the Bribery ofForeign Public Officials in International Business Transactions,
   OECD   (21 November 1997); United Nations Convention Against Corruption, UNCAC (31 October 2003); In-
   ter-American Convention Against Corruption, opened for signature 29 March 1996, Organization of American States
   (entered into force 6 March 1997); Criminal Law Convention on Corruption and Additional Protocol, opened for sig-

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