Ninth Circuit Rules in Sarei v. Rio Tinto

On Monday the Ninth Circuit issued one of the most important decisions interpreting the Alien Tort Statute since Sosa. In Sarei v. Rio Tinto, the Ninth Circuit addressed whether corporate liability can apply to human rights abuses committed by Papua New Guinea (“PNG”). Plaintiffs allege that Rio Tinto and the PNG government quelled an uprising in 1990 that led to a ten-year civil war with “PNG allegedly committ[ing] atrocious human rights abuses and war crimes at the behest of Rio Tinto, including a blockade, aerial bombardment of civilian targets, burning of villages, rape and pillage.” The U.S. State Department filed a statement of interest opposing the litigation.

By a 2-1 majority, the Ninth Circuit ruled, among other things, that (1) all of the plaintiffs’ claims, with the exception of the UNCLOS claim, assert jus cogens violations that are actionable under Sosa; (2) the UNCLOS claim, while not jus cogens, can provide the basis of an actionable ATCA claim given the widespread ratification of that treaty; (3) corporations can be vicariously liable for violations of jus cogens norms; (4) the State Department’s Statement of Interest did not expressly request dismissal and there is no basis to dismiss the lawsuit on political question grounds on the basis of this particular Statement of Interest; (5) jus cogens violations cannot be “official acts” under the act of state doctrine; and (6) the ATCA does not require that claimants exhaust local remedies, the language regarding exhaustion in Sosa notwithstanding.

Judge Bybee in a lengthy dissent argued that the ATCA requires the exhaustion of local remedies. Bybee argued that “international law requires exhaustion of local remedies as a condition to bringing an international cause of action in a foreign tribunal.”

Sarei will require much time and effort to fully digest. My first cut reaction is that in many respects the Ninth Circuit’s opinion is disappointing in its cursory analysis. It offered only a passing analysis of why all of the claims save one constituted jus cogens norms. It boldly suggested that rights in any treaty that has widespread support can form the basis of an ATCA claim, including treaties to which the United States is not a party. It diminished the importance of Executive Branch Statements of Interest and encouraged the State Department to be more interventionist in demanding dismissals. Perhaps most amazing, it reserved all of three sentences to the tremendously important question of corporate liability under international law. More generally, it appeared to not take terribly serious the various cautionary warnings in Sosa.

Of course, I’m not saying a good case can’t be made under these alleged facts for a ATCA violation. But the opinion is underwhelming.