By: Elizabeth Sheargold
28th March 2012
U.S federal courts have taken a narrow approach when considering whether the Alien Tort Statute (“ATS”) can be used as a basis to assert jurisdiction over claims relating to environmental damage that occurred entirely outside of the United States. In spite of this, the plaintiffs in Sarei v. Rio Tinto, PLC brought a range of claims relating to environmental destruction and a subsequent civil war on the island of Bougainville, Papua New Guinea (“PNG”) before the U.S. District Court for the Central District of California. The plaintiffs allege that the mining operations of Rio Tinto, PLC and Rio Tinto Ltd. (collectively “Rio Tinto”) “destroyed Bougainville’s environment and the health of its residents.” They also assert that the defendants “are responsible for human rights violations and war crimes committed” by the government of PNG, which used military force to quell an uprising against the mine.
On October 25, 2011, the Ninth Circuit handed down the latest decision in the Sarei litigation. This Field Report analyzes the amicus brief submitted jointly by the British and Australian governments (“the Brief”). The Brief focuses on whether local remedies in the state in which the alleged wrongs occurred must be exhausted before a U.S. court can exercise jurisdiction under the ATS. Part I of this Report provides an overview of the factual background of the case and a review of how the Sarei litigation has progressed to date. Part II summarizes the arguments put forward in the Brief and their treatment by the Ninth Circuit. Part III provides a brief analysis of the issue of exhaustion of local remedies, arguing that the position of the British and Australian governments has significant merit as a matter of international law and as a question of policy. However, the Brief does not take account of the fact that the PNG government has expressed its support for the litigation proceeding in the United States, nor does it consider how this support should impact a requirement for exhaustion of local remedies.
From the early 1970s until the late 1980s, Rio Tinto operated the Panguna Mine in Bougainville, PNG, which was one of the largest copper mines in the world. The plaintiffs in Sarei allege that the Panguna Mine caused extensive environmental damage, including the destruction of local rainforests, damage to the Kawerong-Jaba river system and other local water bodies, and significant air pollution. In turn, this environmental damage is alleged to have adversely impacted the food supply and health of the local population.
In late 1988, militant Bougainvilleans damaged infrastructure and machinery at Panguna, causing the temporary closure of the mine and subsequently provoking a popular uprising on the island. The plaintiffs in Sarei assert that the PNG government took military action to “put down” the uprising in Bougainville as a result of “threats” by Rio Tinto that it would withdraw investment from PNG. A ten-year civil war in Bougainville ensued.
The plaintiffs in Sarei are current and former residents of Bougainville. They seek redress for a range of wrongs that Rio Tinto is alleged to have committed directly or to have aided and abetted the PNG government in committing. The alleged wrongs include: crimes against humanity; war crimes; racial discrimination; violations of the rights to health, life, and security of the person; cruel, inhuman, and degrading treatment; international environmental violations; and a consistent pattern of gross human rights violations.
The first en banc hearing of the Ninth Circuit considered whether there must be exhaustion of local remedies before a claim can be adjudicated under the ATS. The majority held that there is no “absolute requirement of exhaustion in ATS cases.” Certain “claims are appropriately considered for exhaustion,” however, particularly if the nexus between the claims and the United States is weak and the claims “do not involve matters of ‘universal concern.'”
The case was remanded to the district court, which held that it would be “inappropriate to impose a prudential exhaustion requirement with respect to plaintiffs’ claims for crimes against humanity, war crimes, and racial discrimination.” However, the court ruled that the remaining claims did require an exhaustion of local remedies before they could be heard under the ATS. The Ninth Circuit affirmed this element of the district court’s decision in a second en banc hearing.
II. The Brief
The British and Australian governments submitted a joint brief to the Ninth Circuit as amici curiae in support of the defendants. The arguments made in the Brief echo those made by the U.K. and Australia in earlier amicus briefs submitted in Sarei and in other ATS proceedings. The two countries “have maintained over a long period of time their opposition to overly broad assertions of any extraterritorial civil jurisdiction arising out of aliens’ claims for alleged injuries sustained abroad.”
The Brief argues that there is no U.S. jurisdiction over the plaintiffs’ claims for three reasons. First, there is an insufficient nexus between the claims and the United States. Second, following the Supreme Court’s decision in Sosa v. Alvarez-Machain, only a “modest number of international law violations” fall within the jurisdiction of the ATS. Third, jurisdiction under international law is limited by the rule requiring exhaustion of local remedies, regardless of the nature of the claims at issue. The Brief argues for a narrow interpretation of the ATS, which would prevent all or most of the plaintiffs’ claims from being heard by a U.S. court.
It is in relation to the third issue, exhaustion of local remedies, that the Brief is particularly opposed to the district court’s decision. The district court held that, in deciding whether a prudential exhaustion requirement should apply to the claims of the plaintiffs, the “weak” nexus between the claims and the U.S. could be outweighed by the “the ‘heinous’ nature of the allegations on which the claims are based.” The Brief argues that the court “erred” in this analysis, as the “categorization of claims as ‘of universal concern’ is not relevant to the application of the rule of exhaustion of local remedies.”
Neither the Ninth Circuit’s plurality opinion nor the concurring opinions made any reference to the Brief. In dissent, Judge Kleinfeld viewed the Brief with considerable favor, describing arguments put forward as being “correct” and noting that “[s]cholarship in other countries has supported [the] British and Australian view, and criticized overweening American claims.”
The Brief’s argument that exhaustion of local remedies should be a prerequisite to jurisdiction under the ATS finds significant support in international law, and there are sound policy reasons for imposing this requirement. However, these general arguments in favor of imposing an exhaustion requirement are complicated in this case because the PNG government supports U.S. jurisdiction over the claims.
In international law, there is a well-established customary rule requiring the exhaustion of local remedies before an international tribunal may hear a claim. As the eminent international jurists Sir Ninian Stephen and Judge Stephen Schwebel argued in their amicus brief before the first Ninth Circuit en banc hearing, there is a “well-founded expectation and requirement of the international community that external tribunals will not assume jurisdiction without first ascertaining that an internal, domestic remedy has been fully pursued, or that it would be futile to pursue it.” Although U.S. federal courts are not bound to directly apply rules of customary international law, the ATS allows courts to adjudicate claims arising under the “law of nations.” As a customary rule of international law, the requirement for exhaustion of local remedies should be considered to be part of the “law of nations.” While the Supreme Court has not yet expressly declared it as such, the Court noted in Sosa v. Alvarez-Machain that it would “certainly consider” the requirement for exhaustion of local remedies in an “appropriate case.”
As noted above, the district court relied on the nature of some claims as being of “universal concern” in deciding that a prudential exhaustion requirement need not be met in every case arising under the ATS. While claims brought under the ATS may raise issues of universal concern, this does not necessarily lead to the conclusion that U.S. federal courts should exercise jurisdiction in these cases without first considering whether attempts were made to access local remedies. On the contrary, “[a]pplying the exhaustion requirement would not exclude international human rights claims from U.S courts, but merely limit U.S jurisdiction to cases in which local remedies are ineffective.” Where local remedies are unavailable, have been exhausted, or would be futile, the exhaustion requirement would be satisfied and a claim could be heard under the ATS.
There are also important policy considerations that support the application of the exhaustion requirement. While it may seem desirable for the U.S. to exercise jurisdiction over claims concerning serious allegations, such as war crimes or genocide, this sets a wide precedent for the exercise of extraterritorial jurisdiction that may be followed by many other countries in a range of legal situations. As Justice Kleinfeld argued in his dissent, extraterritorial jurisdiction is inherently problematic because “judicial decisions on entirely foreign matters are likely to be mistaken because of the inadequate reliability of factual determinations.” Moreover, especially in relation to claims involving extractive industries in developing countries, there are significant benefits to requiring plaintiffs to seek local remedies before turning to international avenues to pursue their claims. Necessitating an exhaustion of local remedies encourages “effective local enforcement of civil and criminal remedies,” which is crucial to ensuring that these industries comply with their legal obligations in the future.
It is important to note that while Rio Tinto is a corporate citizen of the United Kingdom and Australia, the Brief does not seek to protect these nations’ own jurisdiction to hear the claims. Rather, as the alleged wrongs occurred in PNG, the local remedies that should have been exhausted would be those available within the PNG legal system.
While the PNG government initially opposed the adjudication of these claims in the United States, it now supports U.S. jurisdiction. The support of the PNG government for the claims being heard in the United States presents an interesting challenge to the argument put forward in the Brief that all local remedies must be exhausted before the U.S. may exercise jurisdiction under the ATS. If, as the U.K. and Australia argue, the basis for the rule requiring exhaustion of local remedies is to ensure that states “exercis[e] extraterritorial jurisdiction . . . in a way that is compatible with the exercise of jurisdiction by other states,” then PNG’s consent to the proceedings may provide an exception to the general requirement for the exhaustion of local remedies. Given that the doctrine of exhaustion is intended to protect the sovereignty of the local state to adjudicate claims arising from conduct within its territory, there appears to be a strong argument that exhaustion should not be required where the state in which the alleged wrongs occurred supports U.S. jurisdiction.
The Supreme Court may soon have an opportunity to rule on this issue, if it so chooses, as Rio Tinto filed a petition for a writ of certiorari on Nov. 23, 2011. That petition raises the question of whether there is a requirement that a plaintiff asserting claims under the ATS must exhaust local remedies before filing suit in the United States. Australia and the United Kingdom have filed an amicus brief with the Supreme Court, which urges the Court to apply the doctrine of exhaustion of local remedies to “reduce the risk of jurisdictional overreaching in ATS cases.”
The district court and Ninth Circuit decisions in Sarei appeared to affirm the narrow approach federal courts have taken in applying the ATS to claims for environmental wrongs, by requiring exhaustion of local remedies for the majority of the claims raised, including claims for international environmental violations. However, the decision that claims relating to matters of “universal concern” do not require exhaustion of local remedies may be of great significance to future claims by citizens of host states against corporations engaged in extractive industries. While environmental wrongs have not been held to fall into the category of “universal concern,” claims relating to these wrongs also often allege violations of human rights and other international norms.
If the Supreme Court grants the petition for certiorari in Sarei, there are indications that it too may take a narrow approach to the scope of the ATS. In late February 2012, the Supreme Court heard arguments in Kiobel v. Royal Dutch Petroleum Co., which involved claims under the ATS relating to the conduct of Royal Dutch Shell in Nigeria. The initial question before the Court was whether the ATS extended to claims against corporations, but, after hearing arguments on that question, the Court ultimately decided to list the case for reargument on the broader question of “[w]hether and under what circumstances the Alien Tort Statute, 28 U.S.C. § 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.” This direction from Kiobel may indicate that the Supreme Court is taking a cautious approach in its consideration of ATS cases involving violations that occur outside the United States that have little or no territorial connection to the United States.
.28 U.S.C. § 1350 (2006).
.See Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 167 (5th Cir. 1999); Jodie Michalski, Recent Developments, The Careless Gatekeeper: Sarei v. Rio Tinto, PLC, and the Expanding Role of U.S. Courts in Enforcing International Norms, 15 Tul. J. Int’l & Comp. L. 731, 738-39 (2007) (stating that the application of the ATS “to environmental issues had little success”).
.Sarei v. Rio Tinto PLC (Sarei I), 221 F. Supp. 2d 1116 (C.D. Cal. 2002), aff’d in part, vacated in part, rev’d in part sub nom., Sarei v. Rio Tinto, PLC, 456 F.3d 1069 (9th Cir. 2006), opinion withdrawn and superseded on reh’g in part sub nom., Sarei v. Rio Tinto, PLC, 487 F.3d 1193 (9th Cir. 2007), on reh’g en banc, 550 F.3d 822 (9th Cir. 2008), and aff’d in part, vacated in part, rev’d in part sub nom., Sarei v. Rio Tinto, PLC, 487 F.3d 1193 (9th Cir. 2007), on reh’g en banc, 550 F.3d 822 (9th Cir. 2008), and aff’d in part, rev’d in part sub nom., Sarei v. Rio Tinto, PLC, No. 02-56256, 2011 WL 5041927 (9th Cir. Oct. 25, 2011).
.Brief of the Governments of the United Kingdom of Great Britain and Northern Ireland and the Commonwealth of Australia as Amici Curiae in Support of the Defendants-Appellees/Cross-Appellants, Sarei v. Rio Tinto, PLC, No. 02-56256, 2011 WL 5041927 (9th Cir. Oct. 25, 2011), 2009 WL 8174961 [hereinafter UK and Australian Government Brief].
.The mine is operated by Bougainville Copper Limited, which is majority-owned by Rio Tinto Limited, with a stake also being held by the government of PNG. While the mine has not operated since May 1989 due to the conflict in Bougainville, the company is currently considering reopening the mine. In addition to copper, the mine also produced small amounts of gold and silver. See About Us, Bougainville Copper Limited, http://bcl.nlawebdesigns.com/about-us/about-the-company.html (last visited Dec. 12, 2011).
.Rio Tinto, 2011 WL 5041927, at *13-14 (Schroeder, J., plurality opinion). The district court also dismissed the plaintiffs’ claims for war crimes, crimes against humanity, and racial discrimination on other grounds. The Ninth Circuit upheld the dismissal of claims for crimes against humanity and racial discrimination on the grounds that they do not meet the threshold set in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), for claims to be justiciable under the ATS, but reversed the dismissal of the claims for war crimes and genocide. Rio Tinto, 2011 WL 5041927, at *2.
.UK and Australian Government Brief, supra note 7, at 1. See, e.g., Brief of the Governments of the Commonwealth of Australia, the Swiss Confederation and the United Kingdom of Great Britain and Northern Ireland as Amici Curiae in Support of the Petitioner, Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (No. 03-339); Brief of the United Kingdom of Great Britain and Northern Ireland as Amicus Curiae in Support of Respondents, Morrison v. Nat’l Austl. Bank Ltd., 130 S. Ct. 2869 (2010) (No. 08-1191), 2010 WL 723009.
.The entire discussion of prudential exhaustion in the plurality opinion occupies less than two pages. It upholds the district court’s decision that exhaustion was not required for claims involving matters of universal concern on the basis that it was not an abuse of the discretion given to the district court by the earlier en banc opinion on the issue of exhaustion. Sarei v. Rio Tinto, PLC, No. 02-56256, 2011 WL 5041927, at *13-14 (9th Cir. Oct. 25, 2011) (Schroeder, J., plurality opinion). The opinion focuses on whether the specific claims identified by the district court-genocide, war crimes, crimes against humanity, and racial discrimination-were crimes of universal concern, whether they were within the jurisdiction of the ATS, and whether they were claimed with sufficient specificity. Id. at *17-29.
.See Interhandel (Switz. v. U.S.) 1959 I.C.J. 6, 27 (Mar. 21) (“The rule that local remedies must be exhausted before international proceedings may be instituted is a well-established rule of customary international law”); Elettronica Sicula S.p.A. (ELSI) (U.S. v. It.) 1989 I.C.J. 15, 42 (July 20) (describing the local remedies rule as “an important principle of customary international law”); see also Restatement (Third) of the Foreign Relations Law § 403 (1987) (setting out conditions for when it is not unreasonable for a state to exercise extraterritorial jurisdiction).
.Brief of Amici Curiae Sir Ninian M. Stephen and Judge Stephen M. Schwebel in Support of Rio Tinto’s Cross-Appeal Regarding Exhaustion of Local Remedies at 7, Sarei v. Rio Tinto, PLC, 499 F.3d 923 (9th Cir. 2007) (Nos. 02-56256, 02-56390) [hereinafter Stephen and Schwebel Brief].
.Sarei v. Rio Tinto, PLC, 650 F. Supp. 2d 1004, 1031 (C.D. Cal. 2010); see also Brief of Amici Curiae International Law Scholars in Support of Plaintiffs-Appellants Philip Alston et al. at 21, Sarei v. Rio Tinto, PLC, No. 02-56256, 2011 WL 5041927 (9th Cir. Oct. 25, 2011), 2010 WL 5780096.
.Stephen and Schwebel Brief, supra note 28, at 12. This position is exemplified in the Torture Victim Protection Act of 1991, which states that a “court shall decline to hear a claim under this section if the claimant has not exhausted adequate and available remedies” in the place where “the conduct giving rise to the claim occurred.” Torture Victim Protection Act of 1991, Pub. L. No. 102-256, § 2(b), 106 Stat. 73, 73 (1992), reprinted in 28 U.S.C. § 1350 note § 2(b) (2006).
.See Sarei v. Rio Tinto, PLC, No. 02-56256, 2011 WL 5041927, at *64-68 (9th Cir. Oct. 25, 2011) (Kleinfeld, J., dissenting) (providing a list of five reasons explaining why it is not appropriate for U.S. federal courts to exercise civil jurisdiction under the ATS without an exhaustion of local remedies); Stephen and Schwebel Brief, supra note 28, at 7-12 (arguing for the importance of exhaustion of local remedies, particularly in the development of international human rights norms).
.See Rosica Popova, Sarei v. Rio Tinto and the Exhaustion of Local Remedies Rule in the Context of the Alien Tort Claims Act: Short-Term Justice, But at What Cost?, 28 Hamline J. Pub. L. & Pol’y 517 (2007) (noting benefits such as the refinement of issues before they reach U.S. courts and development of human rights jurisprudence in developing judicial systems). But see Charles Donefer, Sarei v. Rio Tinto and the Possibility of Reading an Exhaustion Requirement into the Alien Tort Claims Act, 6 Nw. U. J. Int’l Hum. Rts. L. 155 (2007) (arguing that an exhaustion requirement need not be read into the ATS, as the same result is achieved through the doctrine of forum non conveniens).
.Stephen and Schwebel Brief, supra note 28, at 11. Further, “[i]f potential plaintiffs can pursue remedies in the United States based on nothing more than a preference for the American forum and the large damages awards often made by American juries, the courts of newer nations will have correspondingly fewer cases in which to develop remedies in the context of their own law and culture.” Id. at 12.
.In its initial decision, the district court noted that all parties were “amenable” to the claims being heard in Australia, although this was in relation to an argument of forum non conveniens rather than the requirement for exhaustion of local remedies. See Sarei v. Rio Tinto PLC, 221 F. Supp. 2d 1116, 1176 (C.D. Cal. 2002).
.See Sarei v. Rio Tinto, PLC, No. 02-56256, 2011 WL 5041927, at *16 (9th Cir. Oct. 25, 2011) (Schroeder, J., plurality opinion). This position of the PNG government was expressed to the State Department in a letter dated May 26, 2009, which was submitted to the Court on Oct. 26, 2010. This letter was not addressed in the Brief (which was submitted on Dec. 16, 2009).
.Motion for Leave to File Brief as Amici Curiae and Brief of the Governments of Australia and the United Kingdom of Great Britain and Northern Ireland As Amici Curiae in Support of the Petitioners on Certain Questions in their Petition for a Writ of Certiorari at 18, Rio Tinto, PLC v. Sarei, No. 11-649, (U.S. filed Dec. 28, 2011), 2011 WL 6934726.
.Docket Entry (Mar. 5, 2012), Kiobel v. Royal Dutch Petroleum Co., No. 10-1491, 2012 WL 687061, at *1 (U.S. argued Feb. 28, 2012), available at www.supremecourt.gov/