Time Critical Submission This coversheet should only be used where a deadline is specified

- - . . - .. .. . . . Tlli"LE: Brief amicq_s curiae to the United States Supreme Court in Kiobel v· Royal Dutch Petroleum ·- - · · ·

Action Officer

Date due to Office

Simon Brinsmead

27 April 2012

If urgent, has the DLO been consulted regarding sub YIN ~ If no please contact DLO in the relevant office immediately

Justification for short deadline N/A Please describe why sub is provided less than 7 days before the deadline, and note which adviser has approved this, and when.

Branch Head approval of Clearance Schedule

/\Branch Head/\

Approved

17/4/12

CLEARANCE SCHEDULE . ~- ' - ? . ~- - ~ -

Action Officer to enter dates and-submit -to Branch Head-for approval before cleartance ,! process commelilc~s (and ASAP after the need for the sub has been Identified) · -

. - -- . . ~ """ . - . •:

/\Branch Head/\

/\first Assistant Secretary delete if not required/\

Clearance required by 17/4/12

Clearance required by 18/4/12

. For assistance please call the MCU Help Desk on x2777 or mcu@ag.gov.au

!Released under the Freedom of Information Act 1982 by the Attorney-General's Department~Ef147

ATTORNEY -GENERAL AND MINISTER FOR EMERGENCY MANAGEMENT

Brief amicus curiae to the United States Supreme Court in Kiobel v. Royal Dutch Petroleum

Deadline: Friday 27 April 2012

Key Issues: Your agreement is sought to submit a brief amicus curiae to the United States Supreme Court, in conjunction with the United Kingdom, the Netherlands and possibly other like-minded governments in the Court's rehearing of Kiobel v. Royal Dutch Petroleum. The rehearing concerns the extraterritorial application of the United States' Alien Tort Statute (ATS). The Foreign Minister's agreement has also been sought, and we recommend the Prime Minister be informed of Australia's proposed course of action.

AGD Analysis: The Supreme Court's order for rehearing in Kipbel provides Australia with an ideal oppottunity to express our longstanding concern that United States courts persist in hearing ATS claims that have little or no connection to the United States. ln addition, the Supreme Coutt's decision on this particular question in Kiobel will likely determine the outcome in Sarei v. Rio T;nto , aQ ATS case brought against Rio Tinto concerning its activiti'es in Bougainville during the 1980s. At the request of Rio, the Australian Gov~rnment has previously intervened as amicus in Sarei. We recommend the submission of a brief in conjunction with like-minded governments. ·

Austnilia could submit its own brief, or not provide any brief. Neither option is recommended. Making a brief on our own will significantly increase ·our legal expenditure. It is unlikely to produce a better brief, since our views on this case are very similar to those held by the UK and the Netherlands. If we do not submit a brief, we will lose the oppmtunity to add our voice to the strong case to be made by others that the A TS claims entertained by United States' comts are overreaching the jurisdictional bounds permitted by international law.

Financial Implications: The brief is likely to be prepare(! by Don Baker, of Baker and Miller PLLC (a Washington D.C. law firm). The approximate cost to the Department will be A$5 ,000, which would be managed from within existing resources.

Sensitivities and Communic~tions Plan: Not Required. - -

Recommendation: We recommend that you:

(a) Approve Australia's participation in an amicus curiae brief to the Supreme Court, in conjunction with other like-minded governments.

Approved I Not Approved I Discuss

(b) Co-sign the attached letter to the Prime Minister, informing her of Australia' s proposed action.

John Reid Assistant Secretary International Law and Human Rights Division (02) 6141 3554

I 12012

~!eared by

Action Officer:

Matt Hall /201 2

Simon Brinsmead, (02) 6141 3214, Date 17/4/2012

Signed I Not signed

Attorney-General Minister for Emergency Management

I 12012

!Released under the Freedom of Information Act 1982 by the Attorney-General's Department

Austmlian Go\'crnmcnt

Auo·rncy-Gcncrol's DeJl•wiment

Sub No: File No: 11/27219 Min No: "Ministerial number"

Background

The Alien Tort Statute

2. The United States Alien Tort Claims Act 28 U.S.C. § 1350, (A TS) provides:

The district courts shall have original jurisdiction of any civil action by an alien for a tort on ly, committed in violation of the law of nations or a treaty of the United States.

3. A number of claims have been brought under the ATS by non-US litigants, against non-US corporations, in relation to conduct that occurred within the territory of another sovereign State. Two such cases are of particular interest: Kiobel v Royal Dutch Petroleum and Sarei v Rio T;nto.

Sarei v Rio Tinto

4. Sarei has been brought against Rio Tinto by residents of Bougainville, in Papua New Guinea, in connection with Rio Tinto's mining operations in Bougainville during the 1980s. Following a series of appeals on jurisdictional issues, the US Court of Appeals for the Ninth Circuit ruled on 25 October 2011 that the case should be remanded to a US District Court for further proceedings in relation to the claims of genocide and war crimes brought against Rio Tinto under the A TS. The defendants asked the Supreme Coutt to hear the case, including in relation to the question of the extraterritorial reach of the ATS. While the Supreme Coutt has not yet declined to hear Sard, this seems likely given the rehearing ordered in Kiobel.

Kiobe/ v Royal Dutch Petroleum

5. Kiobel involves a putative class action brought by, among others, a widow of one of the 'Ogoni Nine' group of dissidents, who were executed by Nigeria' s Abacha regime in 1995 . The plaintiffs allege that Royal Dutch Petroleum Company and Shell Transpmt and Trading Company, acting through a Nigerian subsidiary, aided and abetted the Abacha regime's violent suppression of protests against oil exploration and development activities in the Ogoni region of the Niger Delta. On 17 September 20 I 0, the United States Court of Appeals for the 2nd Circuit dismissed the action, on the grounds that corporations cannot be liable under international law. The plaintiffs asked the Supreme Coutt to hear the case and the Supreme Comt agreed , granting cettiorari on 17 October 20 II. In oral argument before the Supreme Coutt on 28 February 2012, the justices focussed on the question of whether it would be consistent with international law and international comity for US courts to hear the case. Several justices expressed scepticism that US comts had jurisdiction to hear A TS claims of this nature.

6. On Monday 5 March 2012, the Supreme Coutt ordered rehearing, on the question of 'whether and under what circumstances the A lien Tort Statute, 28 U.S.C. § 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States. '

Australia's previous briefs to U.S. courts

7. The Australian Government has previously supported Rio Tinto' s position before US Coutts through the submission of amicus briefs. In each case, this support has been requested by Rio Tinto. The

Brief amicus curiae to the United States Supreme Court in Kiobel v. Royal Dutch Petroleum 3 ofS

!Released under the Freedom of Information Act 1982 by the Attorney-General's Department FEID~9

Sub No: File No: 11127219 Min No: "'Ministerial number"'

Australlnn Gol'cmmcnt

Attorncy-GcncrBI'~ Department

Governments of Australia and the UK have provided three previous amicus briefs and a letter to the United States courts in relation to Sarei. Most recently, the Governments submitted an amicus brief to the Supreme Court in support of Rio Tinto' s application for cettiorari (i.e. agreeing with Rio Tinto that the Supreme Court should hear the case). A copy of this brief is at Attachment A. The brief reiterated the concerns expressed by the Governments in earlier briefs concerning the failure by US courts to take account of constraints under international law when construing the ATS, leading those courts to entettain suits by foreign plaintiffs against foreign defendants for conduct that took place entirely within the territory of a foreign sovereign. Jn pmticu lar, the brief argued that international law does not generally allow the United States to exercise civil jurisdiction over conflicts and parties having no significant nexus to the United States.

8. Thus, Kiobel provides an ideal oppmtunity for Australia and like-minded countries to argue before the Supreme Coutt that ATS claims with insufficient nexus to the US should not be heard before US comts. C

The United States' position

9. The United States has previously provided a brief to the Supreme Cout1 in Kiobel, in support of the plaintiffs. The United States confined its arguments to the question of whether corporations can be liable under international law. However the United States also suggested that the Supreme Court should not consider arguments about the extraterritorial reach of the ATS.

Next steps

10. We have recently spoken to the UK Foreign and Commonwealth Office (FCO) about their intentions in relation to this case. We understand from FCO that:

• • • is 33(b) J

11. We expect that Australia's costs for preparing the brief would be in the order of A$10,000, which would be shared equally between the Attorney-General's Department and the Depattment of Foreign Affairs and Trade. ·

12. If a brief is provided in support of neither party (rather than in suppott of the Respondents) it will need to be lodged with the Supreme Coutt by 13 June 2012. This will be a tight deadline to meet, given the number of countries that may participate.

Relevance to Election Commi~ments/Govermiient Policy

13. Australia's involvement in this case is consistent with the Australian Government's broader commitment to ensuring adherence to the principles of public international law.

Brief amicus curiae to the United States Supreme Court in Kiobel v. Royal Dutch Petroleum 4 of5 FBD50

!Released under the Freedom of Information Act 1982 by the Attorney-General's Department

Sub No: File No: 11127219

Consultation

Min No: 1\Mitiisterial number/\

Australian Covcmmcnt

AUOI'ncy- Gcneral'~ DcplU'tmcnt

14. DFAT and PMC have been consulted. Approval ofthe Minister ofForeign Affairs is currently being sought in relation to this matter.

Advice Rating 1 2 3 4 5 Comments Timeliness Presentation Quality of Advice

I Poor Satisfactory Excellent

ATTACHMENTS:

A. Motion for Leave to File Brief as Amici Curiae and Brief of the Governments of Australia and the United Kingdom o_fGreat Britain and Northern Ireland as Amici Curiae in Support o_fthe Petitioners on Certain Questions in their Petition fora Writ o_fCertiorari.

B. Draft letter to the Prime Minister

Brief amicus curiae to the United States Supreme Court in Kiobel v. Royal Dutch Petroleum 5 ofS

!Released under the Freedom of Information Act 1982 by the Attorney-General's Department FEIDI3$

THE HON NICOLA ROXON MP ATTORNEY -GENERAL

MINISTER FOR EMERGENCY MANAGEMENT

AFi le nnd ministerial numbers/\

The Hon Julia Gillard MP Prime Minister Parliament House CANBERRA ACT 2600

Dear Prime Minister

We are writing to inform you that we have agreed that the Australian Government should, in conjunction with the Government of the United Kingdom and possibly other like-minded governments, provide a brief amicus curiae to the United States Supreme Court in the matter of Kiobel v Royal Dutch Petroleum. -

The brief will express to the Supreme Coutt our longstanding concern that United States courts continue to hear claims under the United States' Alien Tm~ Statute (A TS) which have no significant connection to the United States, contrary to generally established principles of public international law. Such ·claims frequently involve non-U.S. plaintiffs, non-U.S. defendants and concern activities that take place outside the United States. Rio Tinto plc and Rio Tinto Limited (together Rio Tinto, an Anglo-Australian company) are currently defendants to such a lawsuit. -

- ' -

The Submission of this brief provides an ideal opportunity to express to the Supreme Court our longstanding concern about the jurisdictional overreaching of United States courts in relation to ~laims brought under the A TS.

Finally, we should emphasise that the submissi_on will make very clear our ongoing commitment to the international rule of law, including the promotion of, and protections against violations of, human rights. In no way does our submission condone the alleged activities of Royal Dutch Shell nor, indeed, those of Rio Tinto. Rather, the submission will be confined to clarifying important principles of public international law concerning the proper bounds within which U.S. courts should exercise jurisdiction.

Yours in friendship

NICOLA ROXON BOB CARR

Release ~r'tll~mecrcSWP8'ffnfc8:Y--460Q-•-J:ele~ho.ne~(.Q2)_62 7300 Facsimile-: (02) 6273 4102 n ormation Act 1982 by the Attorney-General's Department FEXD6S

Nguyen, Thuy

From: Sent: To: Cc: Subject:

Attachments:

Cheers

Simon Brinsmead Senior Legal Officer

Brinsmead, Simon Friday, 20 April2012 9:17AM Mckenna, Marie-Charlotte; Rose, Andrew Reid, John TRIM: HP TRIM Electronic Document : 12#275327DOC : Draft letter to PM [DFAT changes included] Draft letter to PM [DFAT changes included]. DOC

/Material Outside Ambit /

Attorney-General's Department, Office of International Law 3-5 National Circuit Barton ACT 2600 T +61 2 6141 3214 F +61 2 6141 3486

This email and any attachments may contain confidential or legally privileged information. You should not read, copy, use or disclose them without authorisation from the sender. If you think it was sent to you by mistake, please delete all copies and advise the sender.

------< HP TRIM Record Information >------

Record Number : 12#275327DOC Title Draft letter to PM [DFAT changes included]

/Released under the Freedom of Information Act 11982 by the Attorney-General's Department JEXD5Z

The Hon Julia Gillard MP Prime Minister Parliament House CANBERRA ACT 2600

Dear Prime Minister

We are writing to inform you that we have agreed that the Australian Government should, in conjunction with the Government of the United Kingdom and possibly other like-minded governments, provide an amicus curiae brief to the United States Supreme Court in the matter of Kiobel v Royal Dutch Petroleum.

The brief will express to the Supreme Court our longstanding concern that United States coutts continue to hear claims under the United States' Alien Tort Statute (ATS) which have no significant connection to the United States, contrary to generally established principles of public international law. Such claims frequently involve non-U.S. plaintiffs, non-U.S. defendants and concern activities that have taken place outside the United States. Rio Tinto pic and Rio Tinto Limited (together Rio Tinto, an Anglo-Australian company) are currently defendants to such a lawsuit.

The submission of this briefprovid.es an ideaLoppottunity to express to the Supreme Comt Australia's longstanding concern about the jurisdictional overreaching of United States courts in relation to claims brought under the A TS, and to influence the Coutt's ruling on this issue.

The briefwill make cl_ear our strong commitment.to-the international rule of law, including the promotion of, and protection from, violations of human rights. In no way will the brief condone the alleged violations of intemational law in Bougainville and Nigeria with which these cases are concerned. Rather, the brief will be confined to clarifying important principles of public international law concerning the proper bounds within which U.S. courts should exercise jurisdiction.

Yours in friendship

THE HON NICOLA ROXON MP Attorney-General and Minister for Emergency Management

SENATOR THE HON BOB CARR Minister for Foreign Affairs