Case of the Month: Sarei v. Rio Tinto (by John Knox)

by Roger Alford

My vote for the most important international case for the month of August is Sarei v. Rio Tinto. I have already given you my quick read of the case here. So I have invited one of the leading international environmental law professors to give his take on this important case. Here is what John Knox of Wake Forest Law School (formerly of Penn State’s Dickinson School of Law) has to say about the case:

Sarei v Rio Tinto has a number of interesting angles, but I’m going to focus on one in particular: its relevance to the use of ATCA for claims arising from environmental degradation. Many ATCA cases, like Sarei, have arisen from major resource extraction projects in developing countries. The projects are typically alleged to have caused widespread environmental degradation that itself violated international norms, as well as (often) leading to or being intertwined with a wider set of abuses of human rights. Courts, including the Second and Fifth Circuits have generally given the claims for environmental degradation short shrift, concluding either that the norms alleged to be violated are too general, not part of international law, or not concerned with “intranational” pollution.

The mining operation that led to the Sarei litigation was unusual in the degree to which the environmental consequences triggered a much broader conflict. Rio Tinto, a large mining company, agreed with Papua New Guinea in the 1960s to open a copper mine in Bougainville, an island east of New Guinea. During the mine’s operation, from 1972 to 1988, Rio Tinto dumped over one billion tons of waste and tailings into the Jaba River, thereby causing immense damage to the environment of the island and to the bay into which the river flows. According to the plaintiffs, the environmental degradation eventually induced the Bougainvilleans to sabotage the mine. Rio Tinto threatened to leave unless PNG quelled the uprising. A ten-year civil war ensued in which “PNG, at the behest of its joint venture partner, Rio Tinto, committed atrocious human rights abuses and war crimes.” There’s no doubt that the civil war caused terrible loss: 15,000 deaths and 70,000 people dislocated, out of a total population of no more than 200,000. In 2001, the parties entered into a peace agreement, which led to the creation in June 2005 of an autonomous Bougainville government.

Understandably, the attorneys for the plaintiffs in Sarei based much of their suit on the non-environmental claims, arguing that Rio Tinto was complicit in PNG’s war crimes and crimes against humanity during the civil war. But they also claimed that Rio Tinto’s operation of the mine violated the Bougainvilleans’ rights to life and health, the principle of sustainable development, and provisions of UNCLOS on marine pollution, as well as discriminating against them on racial grounds. In July 2002, the district court held that most of the claims, including those based on UNCLOS (but not the life/health/sustainable development claims), may provide the basis for an ATCA action. It nevertheless dismissed all of the claims on the basis of the political question doctrine, and the environmental and discrimination claims additionally on act-of-state and comity grounds.

The Ninth Circuit heard argument before the Supreme Court granted cert. in Sosa, then heard a second argument and another round of briefs to allow the parties to take the effect of Sosa into account. Since Sosa was generally seen (well, by me, anyway) as making it more difficult, if not impossible, for plaintiffs to bring environmental degradation claims under ATCA, the plaintiffs seemed to face an uphill battle in convincing the Ninth Circuit to reinstate their environmental claims. The plaintiffs may well have agreed; they didn’t even appeal the dismissal of the life/health/sustainable development claims. But, mirabile dictu, in its August 2006 decision the panel reinstated, by a 2-1 vote, the UNCLOS claim along with the plaintiffs’ war, humanity, and discrimination claims.

How significant a decision is this for international environmental law in U.S. courts? Has the Ninth Circuit found a way to squeeze environmental claims through the door Sosa left ajar? Well, if so, it kept its reasoning to itself. Its analysis, for want of a better word, of whether the UNCLOS meets the Sosa standard is, in its entirety: “As for the UNCLOS claim, the treaty has been ratified by at least 149 nations, which is sufficient for it to codify international law that can provide the basis of an ATCA claim.” This is astoundingly sloppy. First, and most obviously, there is no rule whereby treaties are magically converted to customary international law upon reaching 149 parties. Second, the two sources cited for the statement don’t support it. One is to a 1992 Supreme Court opinion stating that UNCLOS’ provisions on baselines reflect CIL; the other is to the Damrosch Henkin casebook stating that most provisions of UNCLOS reflect CIL, but not specifically referring to the articles in question. Third, it ignores the requirement that the norm be “sufficiently definite to support a cause of action.”

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