Sarei v. Rio Tinto: The Ninth Circuit Tackles the Alien Tort Statute (Again)

by Chimene Keitner

In the wake of U.S. Supreme Court’s cert grant in Kiobel v. Royal Dutch Petroleum, the Ninth Circuit has issued its second en banc opinion in Sarei v. Rio Tinto, which it had earlier tried to avoid by referring the case to mediation. No wonder: yesterday’s opinion, which addressed multiple issues raised by the parties and at least one issue that the parties did not raise, reads like a virtual catalog of contested questions surrounding the interpretation and application of this 1789 provision from the First Judiciary Act. All this in the context of a lawsuit originally filed in the year 2000 against the Rio Tinto mining company for its alleged role in genocide, war crimes, crimes against humanity, and racial discrimination against residents of the island of Bougainville in Papua New Guinea.

I previously blogged on IntLawGrrls about an “emerging circuit split” in corporate ATS cases. This split is now manifest, which no doubt accounts at least in part for the Supreme Court’s decision to tackle the threshold question of corporate liability under the ATS in Kiobel (and the distinct question of whether liability under the Torture Victim Protection Act is limited to natural persons, presented by Mohamad v. Rajoub). The Ninth Circuit’s opinion is much more wide-ranging. On the question of whether corporations can ever be held liable under the ATS, seven out of eleven judges sided with Judge Leval’s concurrence in Kiobel, which answered this question in the affirmative (slip op. at 19339-41). The Ninth Circuit therefore joins the D.C. Circuit in Doe v. ExxonMobil, the Seventh Circuit in Flomo v. Firestone, and the Eleventh Circuit in Romero v. Drummond, in holding that corporations may be found liable under the ATS in appropriate circumstances. Although these circuit courts have reached the same result through different reasoning, I have argued here and more recently here that “the attribution of individual conduct to a corporate entity for the purpose of ascribing legal liability” under the ATS is properly governed by domestic law, meaning that it is somewhat beside the point in this context to ask whether “corporations” as such can or cannot violate international law.

As Trey Childress has indicated, the same Ninth Circuit majority also held in Sarei that the adjudication of transitory torts under the Alien Tort Statute does not violate a statutory presumption against extraterritoriality (slip op. at 19334-39) (or, I might add, international law constraints on the extraterritorial application of U.S. law, since the conduct-regulating norms being applied under the ATS come from international law). In addition, in response to an argument raised by the dissent, the majority found that claims relating to violations of international norms that meet the test of universal acceptance set forth in Sosa v. Alvarez-Machain “arise under” federal law for Article III purposes (slip op. at 19342-51). Finally, although the majority left open the question of whether knowingly as opposed to purposefully aiding and abetting an international law violation would give rise to liability under the ATS (slip op. at 19373), it held that at least purposeful aiding and abetting is actionable; Judges Pregerson and Rawlinson wrote separately in support of a knowledge standard (slip op. at 19384-89) and are (in my view) correct in pointing out that, even if one adopts the Rome Statute for the International Criminal Court as a guide to aiding and abetting liability under international law (which is questionable), the Rome Statute does not support a higher purpose standard in the context of aiding and abetting crimes committed by groups.

All in all, it promises to be an eventful Supreme Court term for those interested in international law in U.S. courts. In the meantime, upcoming events touching on these issues include a panel on emerging issues in ATS litigation at the ASIL mid-year meeting at UCLA on November 4; a discussion of transnational tort liability for multinational corporations in which Julian Ku and I will comment on a paper by Al Sykes at the Georgetown Law Journal’s Centennial Symposium on November 17; and the ASIL International Law in Domestic Courts Annual Interest Group Meeting at BYU Law School on December 16 (details to be posted online soon).

(Cross-posted at IntlawGrrls)

http://opiniojuris.org/2011/10/26/sarei-v-rio-tinto-the-ninth-circuit-tackles-the-alien-tort-statute-again/

3 Responses

  1. Chimene, thanks for this helpful summing up.

  2. Response…
    and don’t forget to address the 20 Supreme Court cases that ALREADY recognize that corporations and companies can have duties and rights under international law.  see 51 Va. J. Int’l L.977, 977-78 & n.2, 986-89 (2011).

  3. Response…
    And PLEASE do not forget that under international law domestic law is no excuse, superior orders are not an excuse per se, no state has the authority to violate international law, any attempt to do so by a state would be ultra vires — e.g., IMT at Nuremeberg, the 1950 Nuremberg Principles approved by the UN GA, so many of our federal court decisions applying the ATCA in human rights litigation, etc.
    From this fundmental recognition and the reality of the primacy of international law at the international level and the lack of authority of any state to authorize violations of international law, please note that responsibility (duties) and rights under international law are what are relevant to the ATCA.  The substantive law incorporated by reference in/through the ATCA is international law (so many courts have already so recognized).  For this reason, if you were Jewish during the Holocaust, Nazi law is not the standard concerning a Jewish person’s rights or a member of the evil SS’s duties under international law (and note, by the way, the decisions from that era concerning corporate duties under international law!).  And if you were “colored” during the evil apartheid regime in South Africa, the standard, the test, the substantive law, the criteria are not domestic law, but international law.  So many cases have already recognized this fact, this base-line requirement of international law itself — which, of course, is necessarily part of the supreme law of the land, the laws of the United States (e.g., Rest. Sec. 111) and which, of course, must be part of the background for interpretation of any federal statute (e.g., The Charming Betsy).
    Who wants to live in an world in which whether you have any rights under international law (e.g., human rights, freedom from genocide, freedom from crimes against humanity), as a matter of law, depends on whether the domestic law of a particular state recognizes your rights under international law?

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