Alien Tort Claims Act

• Author: International Law Group, PLLC
• Pages: 190-191

Page 190

The following class action has been pending since November 2000. See 2007 International Law Update 66. Native residents of Bougainville, Papua New Guinea (PNG) (Plaintiffs) brought a class action against the mining company Rio Tinto, PLC (Defendant), and other parties, based on the Alien Tort Claims Act (ATCA), a 1789 Act of Congress. They alleged that they suff ered serious damages because of war crimes, crimes against humanity, racial discrimination, and environmental torts. Bougainville is the largest of the Solomon Islands in the South Pacific, near the main island of PNG. It is rich in copper, gold and other minerals.

Defendant is part of a large international mining group - with links to Australia and the U.K. - that began operating on Bougainville beginning in the 1960s. With Government support, Defendant allegedly displaced entire villages, razed large tracts of rain forest, polluted the environment, and treated local workers like slaves. In 1988 a peasant revolt took place that led to the closure of the mine, and the dispute eventually grew into a civil war. It is alleged that, to prevent Defendant from investing and operating elsewhere, the government mounted a blockade that prevented medical and other necessities from reaching the rebels for almost 10 years ending in March 2002. The complaint in this case describes Defendant as the instigator. The violence is said to have caused the deaths of about 15,000 local citizens, including children.

The district court found that there were cognizable ATCA claims, but dismissed the matter because of its non-justiciable political questions. Then the U.S. Supreme Court decided Sosa v. Alvarez-Machain, 542 U.S. 692 ( 2004); it clarified that the ATCA is a jurisdictional statute, but also indicated federal courts may impose a preliminary exhaustion requirement in a proper ATCA case.

The ATCA grants U.S. courts jurisdiction over "any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 28 U.S.C. § 1350. The ATCA itself does not expressly require an exhaustion of local remedies, but the Supreme Court suggested that the lower courts should invoke an exhaustion requirement when appropriate. See Sosa, supra, at 733 n. 21.

On appeal to the Ninth Circuit, a majority upheld the dismissal on political question grounds. Most important for the present case, the panel majority held that the ATCA does not require exhaustion of...