Global Policy Forum

Splintered Circuit OKs Alien Tort Case against Rio Tinto

The question of corporate responsibility for human rights abuses abroad is once more on the Ninth Circuit US Court of Appeals’ agenda. A decade ago, the mining company Rio Tinto was sued in a federal court on claims of genocide and war crimes for its alleged complicity with the Papua New Guinean government in an incident that killed 10,000 people. The Court of Appeals has now revived the lawsuit and holds that the Alien Tort Claims Act does not shield corporations from liability of war crimes under international law.

By Ginny LaRoe

October 25, 2011

The Ninth Circuit U.S. Court of Appeals on Tuesday revived a human rights suit against mining company Rio Tinto and held the Alien Tort Statute doesn't shield corporations from liability for violations of international law.

The splintered court's en banc opinion in Sarei v. Rio Tinto, 02-56256, comes a decade after residents of Bougainville sued Rio Tinto in federal court, claiming the British company worked with the government of Papua New Guinea to kill 10,000 people in retaliation for an uprising of natives that had forced a mine to close.

A 6-5 majority said claims of genocide and war crimes claims can go forward. But the court affirmed the dismissal of claims of racial discrimination and crimes against humanity

The majority lost Judge Margaret McKeown on reinstating genocide and war crimes claims. But McKeown, who authored the en banc opinion the last time the Rio Tinto matter was before her court, joined with the majority for a 7-4 vote finding the Alien Tort Statute can extend to corporations' conduct abroad.

"We agree and conclude that international law extends the scope of liability for war crimes to all actors, including corporations," Judge Mary Schroeder wrote for the majority.

The question of corporations' liability under the Alien Tort Statute is already on the Supreme Court's radar. The high court last week granted cert in Kiobel v. Royal Dutch Petroleum, in which the Second Circuit had sided with corporations, splitting from three other circuits, and now the Ninth, on that question.

"This opinion," Susan Farbstein, a director at Harvard Law's International Human Rights Clinic that represents legal scholars in amicus briefs at the Ninth Circuit, said of Tuesday's ruling, "reiterates that Kiobel is an outlier."

Steve Berman, the Seattle-based managing partner of Hagens Berman Sobol Shapiro, who brought suit on behalf of the plaintiffs in U.S. District Court in Los Angeles in 2000, hailed the opinion as a major victory. "This has been a marathon of a case, and Rio Tinto has been using every tool available to delay answering for their actions," Berman said in prepared remarks.

A statement from Rio Tinto, which is represented by O'Melveny & Myers, said only: "We intend to vigorously defend ourselves against these improper claims."

The majority's holding spurred six separate opinions, including a dissent from Senior Judge Andrew Kleinfeld, who blasted the majority for creating a "new imperialism, entitling our court, and not the peoples of other countries, to make the law governing persons within those countries."

The ruling, he continued, means "we on the Ninth Circuit now exercise jurisdiction over all the Earth, on whatever matters we decide are so important that all civilized people should agree with us," he wrote in an opinion joined by Judges Carlos Bea and Sandra Ikuta.

In another dissent, Ikuta — joined by Bea, Kleinfeld and Judge Consuelo Callahan — said federal courts have no authority to hear suits between two aliens.

"The dangers created by the majority's method of creating (or 'recognizing') international rules of law, to say nothing of their application to foreign nationals suing one another in federal court, are obvious," she wrote. "I dissent from this ill-conceived, ill-reasoned and, I fear, ill-fated exercise of judicial power."


FAIR USE NOTICE: This page contains copyrighted material the use of which has not been specifically authorized by the copyright owner. Global Policy Forum distributes this material without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. We believe this constitutes a fair use of any such copyrighted material as provided for in 17 U.S.C § 107. If you wish to use copyrighted material from this site for purposes of your own that go beyond fair use, you must obtain permission from the copyright owner.