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

Court United States Court Of Appeals For The Ninth Circuit, United States
Case number 02-56256/02-56390
Decision title Appeal from the United States District Court for the Central District of California
Decision date 7 August 2006
  • 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, Human rights violations, War crimes
Keywords crimes against humanity, war crimes, corporate responsibility, environmental harm, racial discrimination
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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, an 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. The Court of Appeals overturned this judgement, as it was confident that a judicial ruling in this case would not interfere with the duties and prerogatives of the executive branch.   

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Procedural history

The plaintiffs, current and former residents of the island of Bougainville in Papua New Guinea (PNG), 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. The District Court dismissed the action in 2002, basing its decision on the political question doctrine (which states that ruling on the merits would implicitly contain a qualification of PNG’s actions during the civil war).

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Related developments

The Court of Appeals’ verdict overturning the District Court’s dismissal of the case 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.   

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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. The plaintiffs claim that Rio Tinto forced villagers of their lands, destroyed huge portions of the rain forest and polluted the environment (pp. 8943-8944).  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. 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. 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  (p. 8944).    

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Core legal questions

Despite the fact that several different doctrines of justiciability were at issue in this appeal, the Court formulated the central question as follows: are United States courts the appropriate forum for resolving the plaintiffs’ claims. In answering this question, the Court had to assess the statement of interest submitted by the US State Department, which asserted that continuation of the lawsuit ‘would risk a potentially serious adverse impact…on the conduct of US foreign relations’. Also, it had to examine Rio Tinto’s cross-appeal which argued  that the ATCA requires exhaustion of local remedies, thus in PNG, as this is another way of questioning whether there is a different and more appropriate forum to develop and try these claims.   

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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.

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Court's holding and analysis

The District Court had determined that all claims should be dismissed under the political question doctrine. The Court of Appeals, in contrast, held that most of the plaintiffs’ claims may be tried in the US.

The Court of Appeals confirmed the District Court’s reasoning that the majority of the claims (those regarding war crimes, crimes against humanity, racial discrimination and violations of the UN Convention on the Law of the Sea) fall within the scope of the ATCA and that the Court had jurisdiction to hear these claims (p. 8949) and that the plaintiffs had sufficiently alleged Rio Tinto’s liability for the actions by the PNG (p. 8950). The Court concluded that none of the claims fell within the scope of the political question doctrine. The fact that the State Department had advised against continuance of the case was not in itself sufficient to dismiss the claim, according to the Court (pp. 8955-8956). The Court was confident that proceedings would not express any disrespect for the executive branch of government (p. 8957). Hereafter, the Act of State Doctrine and the Doctrine of International Comity were considered and the Court of Appeals concluded that these doctrines provided no reason to dismiss jurisdiction. 

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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.

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Instruments cited

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Related cases

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Additional materials