A/HRC/29/39
terrorism, money-laundering, corruption, grave human rights abuses and sexual offences
against children. Looking at these different areas, certain patterns can be identified in
relation to the uses of and reactions to extraterritorial jurisdiction and domestic measures
with extraterritorial implications. For instance, these measures are more likely to be viewed
by affected States as reasonable if the regulation is authorized under a bilateral or
multilateral regime, is designed to deal with an issue of international concern (rather than
primarily domestic interests), has been developed in consultation with and takes account of
the interests of other States and includes procedures for the resolution of competing
jurisdictional claims.
30.
This research has also highlighted the various options that may be open to States to
help overcome the practical problems that are commonly encountered in cross-border cases.
In relation to bribery and corruption, for instance, law enforcement bodies of different
States have carried out joint investigations and have entered into case-specific agreements
as to appropriate enforcement strategies and the sharing of financial penalties.
31.
Following up on the recommendations emerging from the initial study
commissioned by OHCHR in 2013 into the effectiveness of domestic judicial mechanisms,
project component 2 will consider the extent to which models of international cooperation
and lessons on the use of extraterritorial jurisdiction from other regulatory areas can be
applied to help overcome challenges in relation to cross-border cases concerning severe
business-related human rights abuses.
32.
At the time of submitting the present report, two separate preliminary studies for
project component 2 had been completed. While they dealt with very different subject
matters, they had a common underlying aim, namely to gather empirical evidence with the
potential to shed light on State practice and attitudes with respect to the appropriate use of
extraterritorial jurisdiction and domestic measures with extraterritorial implications.
B.
Review of State interventions in respect of assertions of extraterritorial
jurisdiction by United States courts in alien tort statute cases
33.
The alien tort statute (United States Code, Title 28, sect. 1350) grants jurisdiction to
United States federal district courts in respect of any civil action by an alien for a tort only,
committed in violation of the law of nations or a treaty of the United States. In recent
decades, plaintiffs have sought to use the statute to bring claims in United States courts for
violations of human rights committed overseas, including in cases alleging abuses by
business enterprises domiciled outside the United States. While the number of successful
cases is small, victims and their representatives have seen the statute as an important means
for redress where claimants are not able to obtain remedy through the courts of the State in
which the alleged abuse occurred. By their nature, these cases invoke questions about the
appropriate assertion of extraterritorial jurisdiction. In a number of cases involving the
statute, States and State agencies have intervened in the litigation by way of letter,
declaration or (most commonly) amicus curiae briefs expressing views about the
appropriate limits of jurisdiction in the particular case or, more generally, as a matter of
policy. The aim of this study was to review as many of these State interventions as possible
and to consider what they might reveal about past and current State practices and views
with respect to the use of extraterritorial jurisdiction in cases involving allegations of
business involvement in serious human rights abuses. In particular:
(a)
What are the main arguments used for and against the use of extraterritorial
jurisdiction in human rights cases?
(b)
How do these arguments differ from arguments for and against
extraterritorial jurisdiction in other regulatory areas?
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