Outdated and Unhelpful: The Problem with the Comity Principle and Act of State Doctrine

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 'Plaintiff M68/2015 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 Declining to adjudicate exercises of State power on the basis of comity and the act of state doctrine is an outdated and unhelpful response to the interconnectedness of legal regulation in the 21st century.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.