Alien tort statute
| Pages | 74-75 |
74 Volume 17, October–December 2011 international law update
© 2012 Transnational Law Associates, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com
ALIEN TORT STATUTE
N C ’
A T S
e Ninth Circuit reviewed a case arising out
of the operations of Rio Tinto mining groups in
Papua New Guinea and the uprising that occurred
against Rio Tinto in the late 1980’s that resulted
in the use of military force and many deaths. e
Plaintis were charged under the Alien Tort Statute
(“ATS”), 28 U.S.C. § 1350, for crimes against
humanity, genocide, racial discrimination, and war
crimes.
is case was brought before this Court twice.
e Court previously held that exhaustion of the
Plaintis’ claims for crimes against humanity, war
crimes, and racial discrimination was necessary
and remanded. On remand, the district court
held that it would be inappropriate to impose
a prudential exhaustion requirement on the
Plaintis’ claims for crimes against humanity, war
crimes, and racial discrimination, nding that
the claims required exhaustion. e district court
also dismissed all claims of genocide, war crimes,
racial discrimination, and crimes against humanity.
Plaintis appealed.
e U.S. Court of Appeals for the Ninth Circuit
arms in part, and reverses and remands in part.
e Court holds that only the Plaintis’ claims of
genocide and war crimes fall within the jurisdiction
of the ATS, and crimes against humanity and racial
discrimination do not.
e ATS “was enacted on the understanding
that the common law would provide a cause of
action for the modest number of international
law violations . . . based on the present-day law of
nations . . . rest[ing] on a norm of international
character accepted by the civilized world and
dened with a specicity comparable to the features
of the 18th-century paradigms we have recognized
[violation of safe conducts, infringement of the
rights of ambassadors, and piracy]. [Sosa v. Alvarez-
Machain, 542 U.S. 692, 724-25 (2004)].” [Slip op.
7]
“us, in discussing the denite nature of
an international norm that gives rise to a cause
of action in an ATS suit against a private actor,
the Supreme Court also noted that a related
consideration is whether international law extends
the scope of liability for a violation of a given norm
to the perpetrator being sued, if the defendant is a
private actor such as a corporation or individual.”
[Slip op. 7]
Rio Tinto attempted to argue that due to its
status as a corporation, it could not be held subject
to the ATS. However, following the precedent of
the Supreme Court in Sosa v. Alvarez-Machain,
the Court determines that Rio Tinto could be
sued under the ATS. “e ATS contains no such
language and has no such legislative history to
suggest that corporate liability was excluded and
that only liability of natural persons was intended.”
[Slip op. 14]
e Court rst looks to the charge of genocide
under the ATS. “Claims of genocide fall within the
limited category of claims constituting a violation of
internationally accepted norms for ATS jurisdiction.
Sosa, 542 U.S. at 729. ey are not barred by the
act of state doctrine because violations of jus cogens
norms are not sovereign acts.” [Slip op. 35]
Further, the Court holds that the jus cogens
prohibition of genocide extends to corporations.
“Given the universal nature of the prohibition, if
an actor is capable of committing genocide, that
actor can necessarily be held liable for violating the
jus cogens prohibition on genocide. Indeed, the
implication that an actor may avoid liability merely
by incorporating is inconsistent with the universal
and absolute nature of the prohibition against
genocide.” [Slip op. 36] “Given that an amorphous
group, a state, and a private individual may all
violate the jus cogens norm prohibiting genocide,
corporations likewise can commit genocide under
international law because the prohibition is
universal.” [Slip op. 37]
Next, the Court looks to the complaints
allegations of war crimes in the form of murder
against the civilian population of Papua New
Guinea. e Court cites a district court case in
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