Alexis Holyweek Sarei et al. v. Rio Tinto PLC and Rio Tinto Limited

Court	United States District Court Central District of California, United States
Case number	CV 00–11695 MMM (AIJx)
Decision title	Order Granting Defendants’ Motion to Dismiss
Decision date	9 July 2002
Parties	Alexis Holyweek Sarei Paul E. Nerau Thomas Tamuasi Phillip Miriori Gregory Kopa Methodius Nesiko Aloysius Moses Raphael Niniku Gabriel Tareasi Linus Takinu Leo Wuis Michael Akope Benedict Pisi Thomas Kobuko Norman Mouvo John Osani Ben Korus Namira Kawona Joanne Bosco John Pigolo Magdelene Pigolo Rio Tinto plc Rio Tinto Limited
Categories	Crimes against humanity, War crimes
Keywords	crimes against humanity, war crimes, corporate responsibility, environmental harm, racial discrimination
Links	Ordering granting Defendants' Motion to Dismiss

Summary

After the civil war in Papua New Guinea, which led to Bougainville obtaining a more autonomous position, several inhabitants of that island sued the mining company Rio Tinto, basically for its role in the war and the process leading up to it. The plaintiffs claimed that Rio Tinto’s mining activities had harmed their health and the environment, and that they had helped the Papua New Guinea government in, among other things, setting up a blockade with disastrous results for the population. They relied on the Alien Tort Claims Act, a US Act which permits aliens to present a claim in a US court when, allegedly, the law of nations has been breached.

The Court stated that it had jurisdiction to hear the majority of the claims. However, it dismissed the claim in entirety, based on the political question doctrine. If the judiciary would rule on the merits of the case, the Court stated, it would judge the policy of Papua New Guinea during the civil war and thereby tread on the exclusive domain of the executive branch of the government, which has the prerogative to decide on foreign policy.

Procedural history

The plaintiffs, current and former residents of the island of Bougainville in Papua New Guinea, filed a putative class action against the defendants under the Alien Tort Claims Act (ATCA), 28 U.S.C. para. 1350. The plaintiffs alleged that Rio Tinto’s mining operations on Bougainville ‘destroyed the island’s environment, harmed the health of its people and incited a ten-year civil war, during which thousands of civilians died or were injured’. Therefore, the plaintiffs alleged, defendants were guilty of war crimes and crimes against humanity, as well as racial discrimination and environmental harm that violates international law. Defendants moved to dismiss the complaint, arguing that the court lacks subject matter jurisdiction and arguing that plaintiffs have failed to state a claim upon which relief can be granted. Alternatively, the defendants contended that the action should be dismissed on the ground of forum non conveniens because it raised questions that are nonjusticiable under the act of state or political question doctrines and because the court should abstain under the doctrine of international comity.

Related developments

The US Court of Appeals overturned the District Court’s dismissal of the case on 7 August 2006, a reversal which was confirmed by a three-judge panel of the US Court of Appeals on 12 April 2007. In December 2008, the Court of Appeals referred the case back to the District Court to determine whether the plaintiffs were required to exhaust the remedies in their home country prior to filing the lawsuit in the US. On 26 October 2010, the Court of Appeals referred the case to another judge to explore the possibility of mediation. After another ruling from the Court of Appeals on 25 October 2011, in which claims regarding genocide and war crimes were upheld, the case was supposed to return to the District Court for further proceedings on the claims. However, the Appeals Court ruled on 28 June 2013 that the case should be dismissed, citing the recent Supreme Court ruling in the Kiobel v. Shell case.

Legally relevant facts

The Rio Tinto Group, of which Rio Tinto plc and Rio Tinto Limited are part, has operated on Bougainville, Papua New Guinea (PNG), since the 1960s, in close corporation with the government (pp. 3-4). The plaintiffs claim that Rio Tinto forced villagers of their lands, destroyed huge portions of the rain forest and polluted the environment (pp. 5-7). They also claim that when the inhabitants of Bougainville forcefully protested against the mining operations, the company warned the PNG government that Rio Tinto might close the mine if the protests were to continue (p. 10). According to the plaintiffs, Rio Tinto knew that this would lead the government to violently repress the uprising, which it started to do in early 1989. Plaintiffs contend that the PNG army attack on 14 February 1990 led to the struggle for independence, that continued until 1999 (p. 11). During the war, according to the plaintiffs, Rio Tinto committed human rights abuses and war crimes while, for example, conspiring with and encouraging the PNG government to impose a blockade (pp. 11-13).

Core legal questions

In assessing whether there is a lack of subject matter jurisdiction, the Court had to determine whether the allegations, if they were to be proven, would fall within the scope of 28 U.S.C. 1350. Thus, it had to be determine whether the plaintiffs were aliens, whether they were suing for tort and whether the allegations fall within the scope of a the law of nations, as alleged by the plaintiffs. Hereafter, the Court had to assess whether the case had to be dismissed for reason that judicial authorities in another country, specifically PNG or Australia, would be more appropriate to hear this case. Lastly, the Court had to examine the defendants’ claim that the questions posed by the plaintiffs were nonjusticiable.

Specific legal rules and provisions

Article 3 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War;
Rule 12(b)(1) of the Federal Rules of Civil Procedure;
US Alien Torts Act.

Court's holding and analysis

The Court held that it had jurisdiction under the ATCA to hear the majority of the complaints. With regard to the claims regarding war crimes, crimes against humanity and racial discrimination, the Court held that these crimes, in general, fall within the scope of the ATCA, that the alleged facts fall within the scope of the definitions of the crimes and that these facts, if proven, could possibly be attributed to Rio Tinto (pp. 32-35 and 46-49). Regarding the environmental harms, the Court concluded that it only had jurisdiction over alleged violations of the UN Convention on the Law of the Sea (p. 66) Regarding other allegations, the plaintiffs failed to demonstrate a violation of "specific, universal and obligatory" norms (p. 62).

However, all claims were dismissed on the basis of the political question doctrine. According to the Court, a ruling on the merits of the plaintiffs' allegations would "inevitably require passing judgment on the pre-war and wartime conduct of the PNG government". The Court concluded that this type of judgment might endanger foreign policy objectives (pp. 117-118).

Further analysis

Articles on the political question doctrine, based on which this case was dismissed in first instance. Moreover Mank wrote an article on the use of multinational environmental treaties as customary international law to sue under the ATCA, using this ruling as an example.

M. Tushnet, ‘Law and Prudence in the Law of Justiciability: The Transformation and Disappearance of the Political Question Doctrine’, SSRN, 25 September 2001;
J. H. Choper, ‘The Political Question Doctrine: Suggested Criteria’, SSRN, 21 July 2005;
B. C. Mank, ‘Can Plaintiffs Use Multinational Environmental Treaties as Customary International Law to Sue Under the Alien Tort Statute?’, SSRN, 30 March 2007;
V. Kanwar, ‘Friends, Enemies, and the Fog of Foreign Relations: How ‘Political Question’ Doctrines Thwart the Development of a Principled Alien Tort Jurisprudence’, SSRN, 16 September 2012.

Instruments cited

Geneva Convention relative to the Protection of Civilian Persons in Time of War (GC IV), 12 August 1949, 75 UNTS 287, entered into force 21 October 1950;
Universal Declaration of Human Rights, UNGA Res. 217 A(III), UN Doc A/810 91, UN General Assembly, 10 December 1948;
American Declaration of the Rights and Duties of Man, adopted by the Ninth International Conference of American States, Bogotá, Colombia, 1948;
European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS 5, 213 UNTS 222, 4 November 1950;
International Covenant on Civil and Political Rights, 999 UNTS 171, 16 December 1966;
American Convention on Human Rights, 1144 UNTS 123, 22 November 1969;
African Charter on Human and Peoples’ Rights, 1520 UNTS 217, 27 June 1981;
UN Convention on the Law of the Sea (UNCLOS),Montego Bay, Jamaica, 10 December 1982, entry into force 16 November 1994;
Charter of Fundamental Rights of the European Union, 2000/C 364/01, 18 December 2000;
US Alien Tort Claims Act, Paragraph 1350 of Title 28 of the Code of Laws of the United States of America (United States Code), Office of the Law Revision Counsel of the U.S. House of Representatives, 1983.

Related cases

US Court of Appeals for the Ninth Circuit, Alexis Holyweek Sarei et al. v. Rio Tinto PLC and Rio Tinto Limited, Case Nos. 02-56256 and 02-56390, Appeal from the United States District Court for the Central District of California, 7 August 2006;
US Court of Appeals for the Ninth Circuit, Alexis Holyweek Sarei et al. v. Rio Tinto PLC and Rio Tinto Limited, Case Nos. 02-56256 and 02-56390, Appeal from the United States District Court for the Central District of California, 16 December 2008;
US District Court for the Central District of California, Alexis Holyweek Sarei et al. v. Rio Tinto PLC and Rio Tinto Limited, Case No. CV 00-11696 MM M (MANx), Order re: Prudential exhaustion, 31 July 2009;
US Court of Appeals for the Ninth Circuit, Alexis Holyweek Sarei et al. v. Rio Tinto PLC and Rio Tinto Limited, Case Nos. 02-56256, 02-56390 and 09-56381, Appeal from the United States District Court for the Central District of California, 25 October 2011.