Court/Judicial body: United States Court of Appeals for the Ninth Circuit
Citation: Case No. 02-56256
Date: 25 October 2011
Instrument(s) cited: US Alien Tort Claims Act 28 of the Code of Laws of the United States of America (United States Code) Office of the Law Revision Counsel of the US House of Representatives, 1983 Geneva Convention relative to the Protection of Civilian Persons in Time of War Universal Declaration of Human Rights International Covenant on Civil and Political Rights
Background: Several inhabitants of Bougainville island sued the mining company Rio Tinto for its role in the Bougainville Civil War and the process leading up to it. The complainants alleged that Rio Tinto warned the Papua New Guinea Government that it would close the mines if the anti-mining protests by the Bougainville inhabitants continued, in the knowledge that this would lead to the violent suppression of the uprising. The complainants alleged in addition that Rio Tinto had helped the Government set up a food and medical blockade with disastrous consequences for the population. They claimed that Rio Tinto’s mining activities had harmed their health and their surroundings by polluting the environment and destroying huge portions of the rain forest, and alleged further that the islanders were paid lower wages than the white workers recruited by Rio Tinto. The complainants alleged that the defendants were guilty of racial discrimination and environmental harm, as well as genocide, war crimes and crimes against humanity. They complained under the Alien Tort Statute (ATS), a US Act which permits civil cases to be brought in the courts of the United States for actions that did not take place in the country. The case was initially filed in the District Court in 2002 and reached the Court of Appeals in October 2011.
Issue and resolution: Jurisdiction under the ATS with regard to: (i) genocide; (ii) war crimes; (iii) crimes against humanity; and (iv) racial discrimination. The Court held that the District Court in this case had jurisdiction to hear a case between two aliens in relation to acts committed outside of the United States. The Court found that the dismissal of the claims for (i) genocide and (ii) war crimes should be reversed, while the dismissal for the claims against (iii) crimes against humanity arising from the blockade and (iv) racial discrimination should be affirmed.
Court reasoning: The Court held that Congress created the ATS with overseas conduct in mind and that, as a result, the fact that conduct occurred in Papua New Guinea did not preclude jurisdiction under the ATS. Referring to the Supreme Court Sosa case, the Court held that the District Court had made a correct analysis of nexus and universality in determining whether exhaustion of local remedies would be required, and had used their discretion correctly in finding that the claims of war crimes, crimes against humanity and racial discrimination were of “universal concern” such that the exhaustion principle would be inappropriate. The Court further held that the ATS did not exclude corporate liability, and concluded that the alleged claims were in relation to violations of sufficiently established international norms. In order for jurisdiction to be found under the ATS, the alleged wrongful act must be a “specific, universal and obligatory” international norm. The claims of genocide and war crimes were found to fall within the scope of the ATS on this basis, but the claims of racial discrimination and crimes against humanity arising from the blockade were deemed to fall short of these requirements. The case was, therefore, referred to the District Court for further proceedings in relation to the claims of genocide and war crimes.
Dissenting opinion: Judges Bea, Kleinfield and Callahan stated that the District Court had erred in skipping an essential step with a view to determining whether an exhaustion requirement should be imposed, arguing that it should have determined whether there was any nexus at all between the US and the acts alleged. They strongly dissented from the majority decision to extend the ATS to foreign jurisdictions, believing that by extending it as such they “arrogate to themselves imperial authority over the whole world”. Impact: The US judiciary continues to disagree over the extent to which the ATS allows them to maintain jurisdiction over essentially foreign acts committed by a foreign individual or corporation. In 2013, the US Supreme Court handed down the decision in Kiobel v. Royal Dutch Petroleum, which placed new limits on ATS lawsuits, such that a foreign multinational corporation with a presence in the US could not be sued for abetting human rights abuses in Nigeria. The Court ruled that the case, brought against Royal Dutch/Shell by Nigerian survivors of horrific abuses, did not sufficiently “touch and concern” the United States. Since 2013, courts have disagreed over the meaning of Kiobel. Some courts have read Kiobel to pose a very high bar to claims for harms that occur abroad, but others (most notably the US Court of Appeals for the Fourth Circuit) have held that a variety of factors, including the citizenship of the defendant, may mean that ATS claims sufficiently “touch and concern” the US to be heard in US courts. In relation to this case, following the US Supreme Court’s ruling in Kiobel, the Supreme Court vacated the October 2011 Court of Appeals ruling, and ordered the Court of Appeals to reconsider the case in light of the Kiobel decision. On 28 June 2013 the Court of Appeals upheld the dismissal of the case, citing the Supreme Court’s reasoning against the extraterritorial application of the ATS. The Order can be found at http://cdn.ca9.uscourts.gov/datastore/opinions/2013/06/28/02-56256%20web.pdf.
Link to full judgement: http://cdn.ca9.uscourts.gov/datastore/opinions/2011/10/25/02-56256.pdf