Alien Tort Claims

• Author: International Law Group
• Pages: 66-67

Page 66

The Plaintiffs, former and current residents of Bougainville, Papua New Guinea (PNG), allege that they or their family members suff ered multi-faceted abuse at the hands of the global mining company, Rio Tinto, PLC (Defendant). After an uprising at the mine in 1988, a decade of civil war ensued in which the PNG army intervened, killing thousands of its own residents.

Plaintiffs filed suit mainly under the Alien Tort Claims Act (ATCA) and the U.N. Convention on the Law of the Sea (UNCLOS) in a California federal court. When Defendant moved to dismiss the complaint, the court sought guidance from the U.S. Department of State (DOS) "as to the eff ect, if any, that adjudication of this suit may have on the foreign policy of the United States." In November 2001, the DOS filed a "Statement of Interest" (SOI); it opined that the potentially adverse eff ect of this suit on U.S. foreign relations with PNG would be severe.

The district court dismissed all claims as nonjusticiable under the "political question doctrine (PQD);" furthermore, it threw out the racial discrimination claim under the "Act of State" doctrine (ASD). The U.S. Court of Appeals for the Ninth Circuit initially affirmed. Then it granted Defendant's petition for rehearing en banc and decides that Plaintiff s can try most of their claims in the U.S. The Court also vacates and remands for the lower court to reconsider (1) its dismissal on ASD grounds of Plaintiff s' claim under the UNCLOS, and (2) the dismissal of the racial discrimination and UNCLOS claims under the international comity doctrine. The central question here is whether the U.S. is the appropriate forum for resolving the Plaintiff s' claims.

The Plaintiffs suggest that the PNG Government no longer opposes this suit. In support thereof, they submitted statements and letters by the PNG Prime Minister, the Chief Secretary of the PNG Government, and the Interim Bougainville Provincial Governor.

First, the Ninth Circuit addresses the PQD. The District Court thought that all of Plaintiff s' claims presented non-justiciable political questions. As in the Court's prior opinion, it considers the following four factors of those set forth in Baker v. Carr, 369 U.S. 186, 217 (1962) relevant: [1.] "a textually demonstrable constitutional commitment of the issue to a coordinate political department"; [4.] "the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate...