Alexis Holyweek SAREI; Paul E. Nerau; Thomas Tamausi; Phillip Miriori; Gregory Kopa; Methodius Nesiko; Aloysius Moses; Rapheal Niniku; Gabriel Tareasi; Linus Takinu, Leo Wuis; Michael Akope; Benedict Pisi; Thomas Kobuko; John Tamausi; Norman Mouvo; John Osani; Ben Korus; Namira Kawona; Joanne Bosco; John Pigolo; Magdalene Pigolo, individually and on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. RIO TINTO, PLC and Rio Tinto Limited, Defendants-Appellees.
Nos. 02-56256, 02-56390, 09-56381
United States Court of Appeals, Ninth Circuit
October 25, 2011
Argued and Submitted Sept. 21, 2010.
In the absence of any explicit finding of diligence by the ALJ, we examine the record ourselves to see if it supports an implicit finding of diligence. The record does not support a finding that “in light of the facts and circumstances of a particular case, the necessary action was undertaken and carried out as promptly as the circumstances permitted.”
Having reviewed the administrative record, we can deduce no reason for these delays. The ALJ‘s decision provides no explanation. Because the record does not support a conclusion that the investigation was carried out as promptly as circumstances permitted, the ALJ lacked authority under the regulations to revise the August 19, 2003 determination in a manner unfavorable to Carillo-Yeras. We reverse and remand with instructions to reinstate the August 19, 2003 determination. See Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir. 1989) (“We may direct the award of benefits where no useful purpose would be served by further administrative proceedings and the record has been thoroughly developed.“).
REVERSED and REMANDED.
Alexis Holyweek SAREI; Paul E. Nerau; Thomas Tamausi; Phillip Miriori; Gregory Kopa; Methodius Nesiko; Aloysius Moses; Rapheal Niniku; Gabriel Tareasi; Linus Takinu, Leo Wuis; Michael Akope; Benedict Pisi; Thomas Kobuko; John Tamausi; Norman Mouvo; John Osani; Ben Korus; Namira Kawona; Joanne Bosco; John Pigolo; Magdalene Pigolo, individually and on behalf of themselves and all others similarly situated, Plaintiffs-Appellants,
v.
RIO TINTO, PLC and Rio Tinto Limited, Defendants-Appellees.
v.
Rio Tinto, PLC and Rio Tinto Limited, Defendants-Appellants.
Alexis Holyweek Sarei; Paul E. Nerau; Thomas Tamausi; Phillip Miriori; Gregory Kopa; Methodius Nesiko; Aloysius Moses; Rapheal Niniku; Gabriel Tareasi; Linus Takinu; Leo Wuis; Michael Akope; Benedict Pisi; Thomas Kobuko; John Tamausi; Norman Mouvo; John Osani; Ben Korus; Namira Kawona; Joanne Bosco; John Pigolo; Magdalene Pigolo, individual-ly and on behalf Central of themselves & all others similarly situated, Plaintiffs-Appellees,
v.
Rio Tinto, PLC; Rio Tinto Limited, Defendants-Appellants,
and
United States of America, Movant.
Nos. 02-56256, 02-56390, 09-56381.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Sept. 21, 2010.
Filed Oct. 25, 2011.
Opinion by Judge SCHROEDER; Concurrence by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge PREGERSON; Partial Concurrence and Partial Dissent by Judge McKEOWN; Partial Concurrence and Partial Dissent by Judge BEA; Dissent by Judge KLEINFELD; Dissent by Judge IKUTA.
Steve W. Berman, Seattle, WA, for plaintiffs-appellants-appellees Alexis Holyweek Sarei, et al.
Sri Srinivasan, Washington, DC, for defendants-appellees-appellants Rio Tinto, PLC, et al.
OPINION
Opinion by Judge SCHROEDER, Circuit Judge, with whom SILVERMAN and BERZON, Circuit Judges, join. PREGERSON and RAWLINSON, Circuit Judges, join as to all but Parts IV(C) and (D) and partially join Part IV(B)(3). REINHARDT, Circuit Judge, joins as to all but Part II(C) and Part IV(B)(3), as to which he concurs in the result. McKEOWN, Circuit Judge, joins as to all but Part IV(A)(3) and Part IV(B)(4):
I. INTRODUCTION
This is an Alien Tort Statute (ATS) case arising out of the operations of Rio Tinto mining group (Rio Tinto) on the island of Bougainville in Papua New Guinea (PNG) and the uprising against Rio Tinto in the late 1980‘s that resulted in the use of military force and many deaths. The Plaintiffs are current or former residents of the island of Bougainville. The ATS provides that “district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in viola-
This is the second time this case has been before this en banc court. See Sarei v. Rio Tinto PLC (Rio Tinto III), 550 F.3d 822, 825-26 (9th Cir. 2008). The facts are laid out comprehensively in the original district court opinion. See Sarei v. Rio Tinto PLC (Rio Tinto I), 221 F.Supp.2d 1116, 1121-27 (C.D. Cal. 2002). The original three-judge panel majority and dissenting opinions were divided on the issue of exhaustion of local remedies. Sarei v. Rio Tinto PLC (Rio Tinto II), 487 F.3d 1193 (9th Cir. 2007). As a result, our first en banc decision focused on that issue. Rio Tinto III, 550 F.3d 822. A majority of this en banc court took the view that exhaustion must be considered, with the narrower, and therefore controlling, plurality opinion by Judge McKeown stating that only prudential exhaustion principles apply. Id. at 832 n. 10.
On remand, the district court held that it would be inappropriate to impose a prudential exhaustion requirement on Plaintiffs’ claims for crimes against humanity, war crimes, and racial discrimination. Sarei v. Rio Tinto plc (Rio Tinto IV), 650 F.Supp.2d 1004, 1032 (C.D. Cal. 2009). It held the remaining claims required exhaustion. The court, therefore, gave Plaintiffs the choice either to withdraw or to submit the following claims to the traditional two-step exhaustion analysis: violation of the rights to health, life, and security of the person; cruel, inhuman, and degrading treatment; international environmental violations; and a consistent pattern of gross human rights violations. Id.
Plaintiffs opted to withdraw those claims, reserving the right to file an amended complaint if the matter is remanded. Id. n. 71. Thus, the only claims before this court on appeal are Plaintiffs’ claims for genocide, crimes against humanity, war crimes, and racial discrimination.
The ATS, as Judge Friendly explained more than three decades ago in IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975), “is a kind of legal Lohengrin; although it has been with us since the first Judiciary Act, § 9, 1 Stat. 73, 77 (1789), no one seems to know whence it came.” This case has been a perplexing one for the judges of this circuit because of the new legal uncertainties in the application of the ATS that flowed in the wake of the Supreme Court‘s decision in Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004).
In Sosa, the Supreme Court held that the ATS is a jurisdictional grant for a limited category of claims for violation of internationally accepted norms. 542 U.S. at 729. The statute 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 defined with a specificity comparable to the features of the 18th-century paradigms we have recognized [violation of safe conducts, infringement of the rights of ambassadors, and piracy].” Id. at 724-25.
Internationally accepted norms must be “specific, universal, and obligatory.” Sosa, 542 U.S. at 732 (citing with approval In re Estate of Ferdinand Marcos, Human Rights Litig. (Marcos II), 25 F.3d 1467, 1475 (9th Cir. 1994)). Thus, in discussing the definite 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
With regard to the specific claims before us, we conclude that only Plaintiffs’ claims of genocide and war crimes fall within the limited federal jurisdiction created by the Act, and that the crimes against humanity arising from a blockade and the racial discrimination claims do not. Under international law, there is a distinction between genocide and crimes against humanity. We discuss this distinction in Section IV of this opinion when we deal with the specific claims. Before discussing each claim, however, we must deal with and reject the more sweeping legal principles that Rio Tinto and our dissenting colleagues argue require dismissal of the entire action. Those include the contentions that we lack jurisdiction under the ATS because all of these claims arise extraterritorially, are claims against corporations, or constitute claims of aiding and abetting liability outside the scope of international law. We also address Judge Ikuta‘s dissenting contention, not raised by any party, that the Act gives federal courts no authority to hear cases between aliens because cases under the ATS are diversity cases that do not “arise under” the laws of the United States. We then reach Rio Tinto‘s alternative contentions that the claims in this suit are nonjusticiable on the grounds that they require prudential exhaustion, constitute political questions, are barred by principles of international comity, or invalidate acts of state.
Although the torts alleged all occurred outside of the United States, Rio Tinto has substantial operations in this country. According to the complaint, Rio Tinto operates in 40 different countries and, as of December 31, 1999, had consolidated operating assets of nearly $13 billion — 47% of which are located in North America. Personal jurisdiction is not disputed.
II. JURISDICTIONAL ISSUES
A. Extraterritoriality
Extraterritoriality is generally a question of statutory interpretation going to the merits of a case. Morrison v. Nat‘l Australia Bank Ltd., — U.S. —, 130 S.Ct. 2869, 2877, 177 L.Ed.2d 535 (2010). Because the Supreme Court in Sosa established that the ATS is a jurisdictional statute, 542 U.S. at 712, however, and because Rio Tinto argues that we lack jurisdiction to apply the Act extraterritorially, we consider extraterritoriality in this case under the heading of jurisdictional issues.
This case concerns conduct that occurred outside the United States. Rio Tinto points to a series of cases that deny extraterritorial effect and pertain to a variety of other statutes in order to argue that the ATS does not apply extraterritorially. EEOC v. Arabian Am. Oil Co. (Aramco), 499 U.S. 244, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991) (Title VII); The Apollon, 22 U.S. 362, 9 Wheat. 362, 6 L.Ed. 111 (1824) (Collection Act of 1799); United States v. Palmer, 16 U.S. 610, 3 Wheat. 610, 4 L.Ed. 471 (1818) (Act for the Punishment of Certain Crimes Against the United States); Rose v. Himely, 8 U.S. 241, 4 Cranch 241, 2 L.Ed. 608 (1808) (French condemnation laws). Additionally, in an earlier order published in this appeal, as well as in our earlier en banc opinion, Judge Kleinfeld dissented, as he does now, on the ground that the ATS applies to conduct only within the United States.
Our circuit has addressed this same issue once before. In In re Estate of Ferdinand Marcos, Human Rights Litig. (Marcos I), 978 F.2d 493, 499-501 (9th Cir. 1992), we considered an ATS claim based
Moreover, we know from Sosa, that the Congress in 1789 had overseas conduct in mind. The Supreme Court in Sosa explained that when the Act was enacted, in 1789, piracy was one of the paradigmatic classes of cases recognized under the ATS. 542 U.S. at 724; see also United States v. Smith, 5 Wheat. 153, 163-180, n.a, 5 L.Ed. 57 (1820) (cited favorably in Sosa, 542 U.S. at 732) (illustrating the specificity with which the law of nations defined piracy). In fact, the North African Barbary Pirates were the scourge of shipping at the time of the ATS‘s passage. ADRIAN TINNISWOOD, PIRATES OF BARBARY: CORSAIRS, CONQUESTS, AND CAPTIVITY IN THE 17th CENTURY MEDITERRANEAN (2010). They roamed the Mediterranean region high-jacking trading vessels, enslaving their crews, and plundering their cargoes. Id. Their attacks against American ships gave rise to the creation of the U.S. Navy in 1794, shortly after the passage of the ATS. A.B.C. WHIPPLE, TO THE SHORES OF TRIPOLI: THE BIRTH OF THE U.S. NAVY AND MARINES (1991, republished in 2001).
Morrison, upon which Judge Kleinfeld‘s dissent predominantly relies, concerned the scope of § 10(b) of the Securities Exchange Act of 1934. It employed a “presumption against extraterritoriality” and tracked the presumption‘s lineage to cases dating from 1932 onward. Id. at 2877-78 (citing Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375 (1932); Foley Bros., Inc. v. Filardo, 336 U.S. 281, 69 S.Ct. 575, 93 L.Ed. 680 (1949); Aramco, 499 U.S. 244; Smith v. United States, 507 U.S. 197, 113 S.Ct. 1178, 122 L.Ed.2d 548 (1993); Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 113 S.Ct. 2549, 125 L.Ed.2d 128 (1993)). There is no indication in Morrison, however, or elsewhere, that a “presumption against extraterritoriality” existed and could have been invoked by Congress in 1789.
The Court held in Morrison that § 10(b) did not apply to securities transactions conducted in other nations, stating that “[w]hen a statute gives no clear indication of an extraterritorial application, it has none.” 130 S.Ct. at 2878. Morrison, however, did not require that Congress use the precise word “extraterritorial” in a statute to establish such applicability. It required only that there be a “clear indication,” stating that such an indication may come from either the text or the context of the statute. Id. at 2883.
There is more than one “clear indication” of extraterritorial applicability in both the ATS‘s text and its context. The ATS provides for jurisdiction “of any civil action by an alien ... committed in viola-
In his dissent, Judge Kleinfeld acknowledges that Congress expressly intended to include claims of piracy within the ambit of the ATS. Nevertheless, he discounts such inclusion for purposes of the statute‘s extraterritorial applicability. He states that while piracy occurs outside the United States, it takes place on the high seas, so there is no potential for interference with another nation‘s sovereignty. He argues that, after Morrison, the express inclusion of piracy as a claim under the ATS can no longer support the statute‘s extraterritorial application. Morrison, however, is very specific about the language of the Securities Exchange Act of 1934 and how it pertains to our own “national public interest.” It focuses on the domestic history of the implementation of § 10(b). Morrison describes Congress as generally enacting statutes that apply in our country, but says nothing about any concerns for the sovereignty of other nations. It provides no reasoning to undermine our conclusion that by recognizing an ATS claim for piracy, Congress intended extraterritorial application of the statute. Judge Kleinfeld accuses us of ignoring concerns about interference with national sovereignty. Yet, the Supreme Court in Sosa took such concerns fully into account when it held that ATS jurisdiction was limited to claims in violation of universally accepted norms. 542 U.S. at 727-28.
Moreover, the ATS is a jurisdictional statute; federal courts frequently exercise jurisdiction with regard to matters occurring out of the country, subject to forum non conveniens and conflict of law principles. See Filartiga, 630 F.2d at 885 (“Common law courts of general jurisdiction regularly [have] adjudicate[d] transitory tort claims between individuals over whom they exercise personal jurisdiction, wherever the tort occurred.” (emphasis added)); see also Marcos I, 978 F.2d at 499-500 (rejecting the argument “that there is no extraterritorial jurisdiction over civil actions based on torture“). The norms being applied under the ATS are international, not domestic, ones, derived from international law. As a result, the primary considerations underlying the presumption against extraterritoriality — the foreign relations difficulties and intrusions into the sovereignty of other nations likely to arise if we claim the authority to require persons in other countries to obey our laws — do not come into play. This is because, Judge Kleinfeld‘s contention notwithstanding, we are not asserting an entitlement to “make law” for the “entire planet.” Kleinfeld op. at 798. Instead, and especially in light of Sosa, the ATS provides a domestic forum for claims based on conduct that is illegal everywhere, including the place where that conduct took place. It is no infringement on the sovereign authority of other nations, therefore, to adjudicate claims cognizable under the ATS, so long as the requirements for personal jurisdiction are met.
The only circuit decision to apply Morrison in a case other than in a securities case is Norex Petroleum v. Access Indus., 631 F.3d 29 (2d Cir. 2010). It dealt with the Racketeer Influenced and Corrupt Organizations Act (RICO), enacted in 1970. There, the Second Circuit, in an amended
We deal with the ATS, not RICO or a securities act. There are strong indications that Congress intended the ATS to provide jurisdiction for certain violations of international law occurring outside the United States, and there are no indications to the contrary. We therefore conclude that the ATS is not limited to conduct occurring within the United States or to conduct committed by United States citizens. The ATS, of course, expressly creates jurisdiction for claims asserted by aliens, so that there can be no dispute that claims may, indeed must, be asserted by entities that are not citizens of the United States.
There is no extraterritorial bar to applying the ATS to the conduct alleged in this case.
B. Corporate Liability
Defendants are all corporate entities, referred to collectively as Rio Tinto, and they contend that the ATS does not apply to corporations. We believe there are two separate but related inquiries with respect to corporate liability in this case. The first is whether, as Rio Tinto argues, the statute itself bars all corporate liability, and to the extent it applies to private actors, permits liability only as to individuals. The second is whether, if there is no overall statutory bar to corporate liability, the particular internationally accepted norm alleged to have been violated recog-
Rio Tinto urges us to hold that the ATS bars corporate liability. This is a view that is to some extent supported by the recent Second Circuit majority opinion in Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 125 (2d Cir. 2010), holding that customary international law as a whole “has not to date recognized liability for corporations that violate its norms.” We, however, conclude the sounder view is that expressed in Judge Leval‘s concurrence. Id. at 153 (Leval, J., concurring) (“No principle of domestic or international law supports the majority‘s conclusion that the norms enforceable through the ATS — such as the prohibition by international law of genocide, slavery, war crimes, piracy, etc. — apply only to natural persons and not to corporations, leaving corporations immune from suit and free to retain profits earned through such acts.“).
In its brief, Rio Tinto looks principally to treaties establishing international tribunals for criminal trials — i.e. the Rome Statute and the Rwanda War Crimes Commission — which do not explicitly provide for corporate liability. The appropriate inquiry, however, is to look at the ATS itself and to the international law it incorporates. Sosa, 542 U.S. at 733.
We have already recognized the importance of looking at the statutory language and purpose. Our circuit‘s most recent decision on corporate civil liability in an international context is Bowoto v. Chevron, 621 F.3d 1116 (2010), where we held that the Torture Victim Protection Act‘s express language and documented legislative history reflected congressional intent to limit liability under that statute to individuals. The statute created a civil action for
The 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. We therefore find no basis for holding that there is any such statutory limitation. This is also the view supported by a distinguished contemporary scholar, Harold Hongju Koh, Separating Myth from Reality About Corporate Responsibility Litigation, 7 J. INT‘L ECON. L. 263, 266-67 (2004). The D.C. Circuit has recently reached the same conclusion. Doe, 654 F.3d at 41-43.
With respect to whether corporate liability exists in any given ATS case, the most recent controlling Supreme Court decision is, of course, Sosa, which defines the scope of the ATS in terms of internationally accepted norms and frames the question of whether a particular defendant may be held liable in terms of the nature of the particular norm alleged to have been violated. In discussing the definite nature of an international norm required to invoke jurisdiction over a cause of action under the ATS, the Court noted:
542 U.S. at 733 n. 20.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.
Sosa expressly frames the relevant international-law inquiry to be the scope of liability of private actors for a violation of the “given norm,” i.e. an international-law inquiry specific to each cause of action asserted. See id. (citing the Second Circuit‘s decision in Kadic, 70 F.3d 232, where both the majority and the dissent applied international law principles, and citing the D.C. Circuit‘s decision in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984), which also looks at international law). The proper inquiry, therefore, should consider separately each violation of international law alleged and which actors may violate it. Where no norm of international law sufficiently “specific, universal and obligatory” has been alleged to give rise to a cause of action, the ATS claim must be dismissed and we need not reach the question of corporate liability. Marcos II, 25 F.3d at 1475.
We therefore address the scope of liability for private actors, including corporate liability, with respect to those claims we conclude can allege a violation of a sufficiently established international norm. There is no legitimate basis for Rio Tinto‘s position that the statute itself is a complete bar to corporate liability.
C. Aiding and Abetting Liability
In this court, although not below, Rio Tinto argues that the ATS does not encompass aiding and abetting liability. For purposes of considering this issue, we assume, without deciding, that the complaint alleges such liability with respect to the war crimes that could be said to have been committed by PNG with the aid of Rio Tinto. Like the inquiry into corporate liability, and for similar reasons, the inquiry into aiding and abetting liability is an international-law inquiry. See Khulumani v. Barclay Nat‘l Bank Ltd., 504 F.3d 254, 268-77 (2d Cir. 2007) (Katzmann, J. concurring) (“aiding and abetting liability, ... is sufficiently well established and universally recognized to be considered customary international law“) (citations, internal quotation marks, and alterations omitted).
The Second and Eleventh Circuits have recognized that aiding and abetting
D. Arising Under Jurisdiction
This is a case brought under the ATS, which is a law enacted by our First Congress. Judge Ikuta‘s dissent argues, however, that federal courts under the ATS lack jurisdiction to adjudicate claims brought by an alien against an alien. In her view, in adjudicating claims under the ATS we are exercising foreign diversity jurisdiction and not dealing with a claim “arising under” the laws of the United States pursuant to Article III of the Constitution. Our circuit has addressed this same issue once before in Marcos I and concluded that ATS claims arise under federal law. 978 F.2d at 502-03. There, we held “that Congress had the power through the ‘Arising Under’ Clause of Article III of the Constitution to enact the Alien Tort Statute.” Id. Some eleven years later, we applied that precedent while sitting en banc in Alvarez-Machain v. United States, 331 F.3d 604, 612 (9th Cir. 2003) (en banc), rev‘d sub nom., Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). Although Sosa reversed Alvarez-Machain, it did so on unrelated grounds, and did nothing to call into question the holding that we have jurisdiction to hear claims cognizable under the ATS because they “arise under” federal law for Article III purposes. Indeed, the best reading of Sosa is that it confirms our circuit law on this point, to which we adhere today.
Judge Ikuta‘s dissent emphasizes Sosa‘s characterization of the ATS as a jurisdictional statute. Although the Supreme Court in Sosa described the ATS as “jurisdictional in nature,” 542 U.S. at 713, the Court rejected defendant‘s argument that the ATS “does no more than vest the federal court with jurisdiction.” Id. Rather, the Court held “that federal courts could entertain claims once the jurisdictional grant was on the books, because torts in violation of the law of nations would have been recognized within the common law of the time.” See Sosa, 542 U.S. at 714 (citing Brief of Professors of Federal Jurisdiction and Legal History as Amici Curiae in Support of Respondents, 2004 WL 419425). The Court said: “Although we agree the statute is in terms only jurisdictional, we think that at the time of enactment the jurisdiction enabled federal courts to hear claims in a very limited category defined by the law of nations and recognized at common law.” Id. at 712.
Judge Ikuta‘s repeated assertion that Sosa held that the ATS is “a purely jurisdictional statute” is thus misleading, omitting the nuance in the Sosa opinion. See Ikuta op. at 821, 828. What Sosa actually said is that although the statute is written as a grant of jurisdiction, it was understood at the time of its passage that the common law would provide a cause of action for violations of the law of nations or a treaty of the United States. See Sosa, 542 U.S. at 713-14. In other words, Sosa holds that the ATS was enact-
Of course, as Justice Scalia points out in Sosa, the “common law” at the time was “the so-called general common law,” and not federal law. Id. at 739 (Scalia, J., concurring) (“General common law was not federal law under the Supremacy Clause.“). As one of our colleagues has explained, claims arising under the general common law did not arise under federal law or state law. “Federal and state courts adjudicating questions of general common law were not adjudicating questions of federal or state law, respectively — the general common law was neither.” William A. Fletcher, International Human Rights in American Courts, 93 VA. L. REV. IN BRIEF 1, 2 (2007) (“[B]y the early nineteenth century it had become clear that the general law, including the law of nations, was not federal law in either the jurisdiction-conferring or supremacy-clause sense.“).
But the concept of the “common law” changed dramatically after Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). After Erie, we no longer recognize a “general” common law as applicable in federal courts. Now, when federal courts decide claims arising under federal common law or federal statutes, they are applying federal law. As both the Sosa majority and Justice Scalia‘s concurrence point out, following Erie “[t]here developed a specifically federal common law.” Id. at 741 (Scalia, J., concurring); see also id. at 726 (maj. op.) (”Erie ... was the watershed in which we denied the existence of any federal ‘general’ common law....” (citation omitted)).
Most important for present purposes, there is no question that claims premised on federal common law arise under the law of the United States. See, e.g., Illinois v. City of Milwaukee, 406 U.S. 91, 100, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972) (“We see no reason not to give ‘laws’ its natural meaning, and therefore conclude that § 1331 jurisdiction will support claims founded upon federal common law as well as those of a statutory origin.” (citation omitted)); 19 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4514, 455 (2d ed. 1996) (“A case ‘arising under’ federal common law presents a federal question and as such is within the original subject-matter jurisdiction of the federal courts.“).
Judge Ikuta‘s dissent insists that even today, more than seventy years after Erie, cases brought pursuant to the ATS do not “arise under” the Constitution or laws of the United States for Article III purposes. In essence, she maintains that as a claim brought under the ATS would not have arisen under the laws of the United States for Article III purposes at the time the ATS was enacted — because, as we have explained, the cause of action would have been supplied by the “general” common law, which did not confer jurisdiction — it cannot do so now, even though the “general” common law no longer exists. Couching her argument in terms of Congressional intent, within the framework of the law in existence in 1789, Judge Ikuta ignores the subsequent development of the law that Sosa so clearly explained and endorsed taking into account. In fact, an entire subsection of the opinion (IV.B) was devoted to explaining why, despite the changed understanding of “the common law,” the judiciary retains the power, “subject to vigilant doorkeeping,” to recognize international norms as actionable under the ATS. Sosa, 542 U.S. at 729. Although Sosa gave several reasons for this holding, most relevant to highlighting the degree to which it foreclosed Judge
Id. at 729-30 (emphasis added).We think an attempt to justify such a position would be particularly unconvincing in light of what we know about congressional understanding bearing on this issue lying at the intersection of the judicial and legislative powers. The First Congress, which reflected the understanding of the framing generation and included some of the Framers, assumed that federal courts could properly identify some international norms as enforceable in the exercise of [ATS] jurisdiction. We think it would be unreasonable to assume that the First Congress would have expected federal courts to lose all capacity to recognize enforceable international norms simply because the common law might lose some metaphysical cachet on the road to modern realism.
Sosa went on to caution that it did not “imply that every grant of jurisdiction to a federal court carries with it an opportunity to develop common law.” Id. at 731 n. 19. It rejected the argument that “the grant of federal-question jurisdiction [under
In short, we read Sosa to permit courts to develop the federal common law by incorporating into it certain claims that derive from norms of international law — but only after determining that they meet the Sosa standards limiting those norms for ATS purposes. Sosa‘s limitations on claims cognizable under the ATS, moreover, are themselves substantive federal law, just as the
The Supreme Court in Sosa put it this way: “[F]ederal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when § 1350 was enacted.” 542 U.S. at 732. The clear implication of these instructions is that claims that meet this exacting standard are “recognize[d] ... under federal common law.” Id.; see also id. (recognizing that ATS claims are “private claims under federal common law for violations of ... international law norm[s]“); id. at 745 n. * (Scalia, J., concurring) (“[A] federal-common-law cause of action of the sort the Court reserves discretion to create would ‘arise under’ the laws of the United States ... for purposes of statutory federal-question jurisdiction.” (emphasis omitted)).
Judge Ikuta‘s assertion that “international law is not itself part of the ‘Laws of the United States’ for purposes of Article III” is therefore not wrong, but it is incomplete. More accurately, it should state: The norms underlying international law torts are not itself part of the “Laws of the United States” for purposes of Article III until they have been incorporated into the federal common law pursuant to the exacting process articulated in Sosa.
Other aspects of Sosa confirm this conclusion. Sosa itself was a suit between two aliens. Two of the amicus briefs submitted on behalf of the respondent in Sosa pointed out the alleged Article III deficiency that Judge Ikuta asserts exists here. See Brief for the National Foreign Trade Council, et al., as Amici Curiae, 2004 WL 162760, at 24-25 (Jan. 23, 2004) (“Some ATS suits (including this one) feature aliens suing aliens — making the suits ineligible for federal diversity jurisdiction. For the suits to be maintainable, therefore, they would have to fall under another head of Article III jurisdiction — probably jurisdiction for ‘Cases ... arising under ... the Laws of the United States.’ But, ... international law itself, without some congressional action incorporating it into positive domestic law, is not law of the United States for Article III purposes. Reading the ATS as permitting suits based only on generalized international law, with no further specification by statute or treaty, would mean the statute attempted to provide jurisdiction well beyond the Article
The Sosa Court‘s obvious awareness of the potential Article III problem, moreover, makes even more significant Sosa‘s acknowledgment that the ATS will call upon the federal courts “to consider suits under rules that would go so far as to claim a limit on the power of foreign governments over their own citizens, and to hold that a foreign government or its agent has transgressed those limits.” Sosa, 542 U.S. at 727. The paradigmatic example of a suit that could “claim a limit on the power of foreign governments over their own citizens” is a case such as this one, where a foreign plaintiff is suing a foreign defendant for a tort committed in a foreign country. We are, of course, cognizant of Sosa‘s warning regarding “the potential implications for the foreign relations of the United States of recognizing such causes,” id. — a concern that we address in Part III.B — but Sosa clearly contemplated that courts would at least have subject-matter jurisdiction, under appropriate circumstances, to hear cases brought under the ATS in which foreign plaintiffs allege that they have been wronged by their (foreign) governments. We are unwilling to assume, as Judge Ikuta apparently does, that the Sosa Court would warn us to be careful regarding the foreign-policy implications of hearing a type of case over which we lack subject matter jurisdiction entirely — particularly when the alleged jurisdictional defects of which Judge Ikuta complains were brought to its attention.
Others agree that Sosa stands for the proposition that claims cognizable under the ATS arise under the federal common law, and therefore provide subject matter jurisdiction. See Fletcher, supra, at 7-8 (explaining that, after Sosa, we know “that there is a federal common law of international human rights based on customary international law” and that “the federal common law of customary international law is federal law in both the jurisdiction-conferring and supremacy-clause senses“); see also, e.g., Khulumani, 504 F.3d at 265 (Katzmann, J., concurring) (explaining how ”Sosa makes clear that all ATCA litigation is in fact based on federal common law, rather than a statutory cause of action“); id. at 286 (Hall, J., concurring) (“[A]lthough the substantive norm to be applied is drawn from international law or treaty, any cause of action recognized by a federal court is one devised as a matter of federal common law.” (quoting the Brief for the United States of America as Amicus Curiae at 5 (alteration in the original))); William R. Casto, The New Federal Common Law of Tort Remedies for Violations of International Law, 37 RUTGERS L.J. 635, 638 (2006) (”Sosa squarely holds that ATS litigation is based upon a federal common law cause of action....“); Ernest A. Young, Sosa and the Retail Incorporation of International Law, 120 HARV. L. REV. F. 28, 31, 33 (2007) (”Sosa is best read as recognizing a federal common law implied right of action for the violation of certain [customary international law] rules of decision.... [O]nce Sosa recognized a federal right of action, that recognition was sufficient to bring such claims within current understandings of Article III‘s ‘arising under’ jurisdiction.“).
To further support the proposition that the ATS does not arise under the laws of the United States, Judge Ikuta points out that admiralty law does not arise under the laws of the United States. Am. Ins. Co. v. 356 Bales of Cotton, 26 U.S. 511, 545, 1 Pet. 511, 7 L.Ed. 242 (1828).
Article III has three specific grants of subject-matter jurisdiction.
In conclusion, the controlling decision of the Supreme Court, Sosa, and the overwhelming weight of scholarly authority all compel us to hold that an ATS case “arises under” the laws of the United States and calls for the exercise of federal question jurisdiction pursuant to Article III.
III. NONJUSTICIABILITY ISSUES
A. Prudential Exhaustion
This en banc court in the controlling plurality opinion by Judge McKeown “remanded for the limited purpose to determine in the first instance whether to impose an exhaustion requirement on plaintiffs” and in the same opinion outlined a framework. Rio Tinto III, 550 F.3d at 831-32. The opinion explained that “[t]he lack of a significant U.S. ‘nexus’ is an important consideration in evaluating whether plaintiffs should be required to exhaust their local remedies in accordance with the principle of international comity.” Id. at 831. It went on to point out that “[t]he nature of certain allegations and the gravity of the potential violations of international law” trigger America‘s “historical commitment to upholding customary international law.” Id. The opinion expressly stated that prudential exhaustion “is not a prerequisite to jurisdiction” but is a principle that governs the timing of decision making. Id. at 828.
This is consistent with the Supreme Court‘s observation in Sosa that exhaustion might be warranted when “appropriate” in ATS cases, 542 U.S. at 733 n. 21, and led the plurality of this en banc court to observe that in ATS cases “[w]here the United States ‘nexus’ is weak, courts should carefully consider the question of exhaustion, particularly — but not exclusively — with respect to claims that do not involve matters of ‘universal concern.’ ” 550 F.3d at 824. The district court was bound by that directive, and, since the nexus of the claims to the United States was weak, concluded exhaustion was required for all claims other than those involving matters of universal concern. Rio Tinto IV, 650 F.Supp.2d at 1031.
Defendants now maintain in this appeal that the district court‘s analytical framework on remand was flawed and that the district court did not consider the question of exhaustion with sufficient care. Defendants reason that if the district court had given the issue careful consideration it
The district court did not abuse its discretion when it considered whether exhaustion was required under the controlling plurality opinion of this court. The controlling rationale of our prior en banc decision did not require dismissal of the entire action for failure to exhaust.
B. Political Question, International Comity, Act of State
Courts have long been hesitant to decide issues that might infringe upon the conduct of the Executive Branch and hence have been concerned about what are characterized as “political questions.” The doctrine “derives from the judiciary‘s concern for its possible interference with the conduct of foreign affairs by the political branches of the government.” DeRoburt v. Gannett Co., 733 F.2d 701, 703 (9th Cir. 1984). The district court originally dismissed all claims in this case as nonjusticiable political questions, relying on the initial position taken by the United States Department of State that interference with our relations with PNG might result from adjudication. Rio Tinto I, 221 F.Supp.2d at 1193-1199, 1208-09. Cases raising political questions are nonjusticiable. Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 170, 2 L.Ed. 60 (1803).
Courts considering the political question doctrine begin with Baker v. Carr, in which the Supreme Court described the doctrine as a function of the separation of powers and set forth six factors that require the dismissal of a suit under the political question doctrine if any one of them is “inextricable from the case at bar.” 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Rio Tinto argues that four of the six Baker factors are at issue here:
- “a textually demonstrable constitutional commitment of the issue to a coordinate political department“;
- ***
- “the impossibility of a court‘s undertaking independent resolution without expressing lack of the respect due coordinate branches of government“;
- “an unusual need for unquestioning adherence to a political decision already made“; or
- “the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”
We will address each of these factors in turn and must, if any is inextricable from the case, dismiss the entire action as nonjusticiable. See Corrie v. Caterpillar, Inc., 503 F.3d 974, 980 (9th Cir. 2007).
In evaluating whether this case involves matters submitted to another branch, the first Baker factor, we are mindful that the conduct of foreign policy is not the role of the courts. In this case, “we are not faced with analyzing a specific clause of the Constitution but rather proceed from the understanding that the management of foreign affairs predominantly falls within the sphere of the political branches and the courts consistently defer to those branches.” Alperin v. Vatican Bank, 410 F.3d 532, 549 (9th Cir. 2005). The political question inquiry “is a case-by-case inquiry because it is error to suppose
Congress expressly enacted the
The fourth, fifth and sixth Baker factors are relevant in an
The United States Department of State originally submitted a Statement of Interest (SOI) which concluded that “continued adjudication of the claims ... would risk a potentially serious adverse impact on the peace process, and hence on the conduct of our foreign relations.” The State Department was primarily concerned that adjudication of this case could invalidate acts of reconciliation that had already occurred in the war between PNG and the people of Bougainville and would “sweep away the basis of the peace agreement.” The SOI also noted the PNG‘s strong objection to these proceedings. Thus, in response to Plaintiffs’ original appeal, Rio Tinto supported the dismissal of the suit by arguing that there would be interference with U.S. foreign relations and relied on the SOI. When this en banc court remanded to consider prudential exhaustion, it did not expressly consider the issue. Rio Tinto III, 550 F.3d 822. We now do.
The political situation has significantly changed since the district court originally heard this case. Neither the PNG nor the US government now oppose the litigation going forward. In fact, in a letter sent on May 26, 2009, the PNG expressly urged that the case “be heard by courts in the United States” explaining that the Bougainville Government does “not see the case ... adversely affecting any relations between us and [the] United States.” The US government, for its part, has told this court in its briefs that it no longer believes foreign policy concerns are material in this
This case presents exactly the types of questions that courts are well-suited to resolve: whether actions were lawful under specific and obligatory laws, whether the defendants are responsible for such actions, and whether the plaintiffs are entitled to relief. The political question doctrine is thus no bar to our exercise of jurisdiction.
Rio Tinto has also argued that all of Plaintiffs’ claims are barred by the international comity doctrine, but that argument fails for similar reasons. Comity is rooted in international relations. “Comity refers to the spirit of cooperation in which a domestic tribunal approaches the resolution of cases touching the laws and interests of other sovereign states.” Societe Nationale Industrielle Aerospatiale v. United States District Court for the Southern District of Iowa, 482 U.S. 522, 544 n. 27 (1987). It is out of that very spirit of cooperation and deference to tribunals in other nations that we held exhaustion may be a prudential bar to certain claims under the
The district court‘s consideration of exhaustion was sufficient to alleviate comity concerns. In considering whether exhaustion was required, the district court considered the universality of the norm and the nexus (or lack thereof) to the United States. Rio Tinto IV, 650 F.Supp.2d at 1014-31. In holding that the jus cogens violations alleged do not require exhaustion, the district court balanced the multiple concerns animating the comity doctrine. Id. at 1030-31.
The district court‘s earlier dismissal on comity grounds was predicated in large part on PNG‘s opposition. Rio Tinto I, 221 F.Supp.2d 1116, 1199-1204. Such opposition is no longer present, and, in fact, the government of PNG has expressed its position that this action should go forward. Sarei v. Rio Tinto, 625 F.3d 561 (9th Cir.2010). In light of both the exhaustion analysis conducted by the district court and the position of the PNG government, we conclude that comity does not bar any of the claims.
Finally, Rio Tinto argues that the act of state doctrine requires dismissal of Plaintiffs’ claims. This argument also fails. “The act of state doctrine ... precludes the courts of this country from inquiring into the validity of the public acts a recognized foreign sovereign power committed within its own territory.” Banco Nacional de Cuba, 376 U.S. at 401. However, jus cogens norms are exempt from the doctrine, since they constitute norms “from which no derogation is permitted.” Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714 (9th Cir.1992) (quoting the Vienna Convention on the Law of Treaties) (internal quotations omitted); see id. at 718 (holding a violation of a jus cogens norm is not a sovereign act). Thus, Plaintiffs’ claims that allege jus cogens violations are not barred by the act of state doctrine.
IV. THE SPECIFIC CLAIMS THE DISTRICT COURT HELD WERE MATTERS OF UNIVERSAL CONCERN
We turn to the specific claims that the district court determined were within the
The complaint, the district court decisions, and other
A. Genocide
The complaint alleges genocide against the indigenous population of the island of Bougainville in violation of the Convention on the Prevention and Punishment of the Crime of Genocide.
1. The prohibition against genocide is a specific, universal, and obligatory internationally accepted norm.
The concept of genocide as an internationally accepted norm was a product of World War II. Genocide was first defined in 1948 in the Genocide Convention as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:”
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Genocide Convention, art. II.
The United States ratified the Convention, although without a declaration as to whether or not the treaty was self-executing. This approach was in contrast to that taken with regard to ratification of the Convention on the Elimination of Racial Discrimination, which contained a declaration that it was not self-executing. See Genocide Convention Implementation Act of 1987,
Accordingly, even accepting Justice Scalia‘s argument that the treaty ratification itself did not create a remedy, the status of genocide as a jus cogens norm remains indisputable. See, e.g., Restatement Third, §§ 404, 702; Siderman de Blake, 965 F.2d at 717. Genocide has been criminalized by all of the international criminal tribunals. Rome Statute, art. 6; ICTY Statute, art. 4; ICTR Statute art. 2. The Genocide Convention has been ratified by more than 140 nations. U.S. Department of State, Treaties in Force (2010). The Convention itself makes clear the non-derogable nature of the prohibition by establishing that “constitutional rulers,” among other parties, may be punished for genocide and that the prohibition applies irrespective of peace or war. Genocide Convention, arts. I, IV. The International Court of Justice (ICJ) reiterated that the prohibition on genocide is a jus cogens norm in a 2007 opinion. Bosnia and Herzegovina v. Serbia, 2007 I.C.J. 91, 161 (Feb. 26).
In addition, the jus cogens norm prohibiting genocide is sufficiently specific to give rise to an
Claims of genocide, therefore, fall within the limited category of claims constituting a violation of internationally accepted norms for
2. The jus cogens prohibition of genocide extends to corporations.
Having determined that the jus cogens prohibition of genocide is sufficiently specific, universal, and obligatory to give rise to an
Article IX of the Genocide Convention provides that contracting parties may submit disputes to the ICJ “including those relating to the responsibility of a State for genocide or any of the other acts enumerated in article III.” Genocide Convention, art. IX. The ICJ has made it explicitly clear that a state may be responsible for genocide committed by groups or persons whose actions are attributable to states. Bosnia and Herzegovina, 2007 I.C.J. at 167. This clarity about collective responsibility implies that organizational actors such as corporations or paramilitary groups may commit genocide. Given the universal nature of the prohibition, if an actor is capable of committing genocide, that actor can necessarily be held liable for
The ICJ has so recognized. Examining the treaty and other sources of customary international law in 2007, the ICJ held “Contracting Parties to the Convention are bound not to commit genocide, through the actions of their organs or persons or groups whose acts are attributable to them.” Bosnia and Herzegovina, 2007 I.C.J. ¶ 167. The ICJ acknowledged that the Convention did not explicitly provide for direct state responsibility for the commission of genocide, but held “[i]t would be paradoxical if States were thus under an obligation to prevent, so far as within their power, commission of genocide by persons over whom they have certain influence, but were not forbidden to commit such acts through their own organs, or persons over whom they have such firm control that their conduct is attributable to the State concerned under international law.” Id. at ¶ 166.
Corporations are recognized legal entities, yet, according to the ICJ, even amorphous “groups” may be guilty of genocide. The ICJ‘s analysis is instructive, in particular because the Supreme Court has noted that “[i]n interpreting our treaty obligations, we ... consider the views of the ICJ itself, ‘giving respectful consideration to the interpretation of an international treaty rendered by an international court with jurisdiction to interpret the treaty.‘” Medellin v. Texas, 552 U.S. 491, 513 n. 9 (2008) (quoting Breard v. Greene, 523 U.S. 371, 375 (1998) (per curiam)). The ICJ concluded that genocide is a violation of international law whether committed by an individual, an amorphous group, or a state, consistent with all other sources of international law recognizing the universality of the prohibition of genocide. See Bosnia and Herzegovina, 2007 I.C.J. at ¶ 417 (attributing the genocide in Srebrenica to “persons and groups of persons“).
The ICJ made explicitly clear that a state may be responsible for genocide committed by groups or persons whose actions are attributable to states. Id. at ¶ 167 (Feb. 26). Under this holding, loosely affiliated groups such as paramilitary units may commit genocide, particularly in light of consistent case law indicating that genocide does not require state action. See id. (attributing genocide to a non-state actor); see also Kadic, 70 F.3d at 241-44. 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. See Genocide Convention, Preamble (“[G]enocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world.“).
We recognize that this holding puts us at odds with the Second Circuit majority in Kiobel. See 621 F.3d at 120. We, like the Second Circuit, have also taken guidance for our analysis from a footnote in Sosa and asked “whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued.” Kiobel, 621 F.3d at 120 (quoting Sosa, 542 U.S. at 732 n. 20). The Second Circuit majority looked to whether any international institution had held a corporation liable for war crimes. See 621 F.3d at 119; 131-45. We, however, believe the proper inquiry is not whether there is a specific precedent so holding, but whether international law
3. The complaint adequately alleges a claim of genocide.
We turn, then, to whether the complaint sufficiently alleges facts supporting a claim of genocide. Plaintiffs’ complaint includes allegations of killing, serious bodily harm, and the deliberate infliction of conditions of starvation “for the purpose of starving the bastards out.” The complaint alleges that Rio Tinto called in military force so that it could wipe out the native inhabitants of Bougainville engaged in an uprising. Such acts are prohibited by the Genocide Convention. Genocide Convention, art. II(a), (b), and (c) (prohibiting “(a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part” with the intent to destroy a protected group). The complaint therefore alleges facts supporting an inference of acts that could constitute genocide.
To support a claim for genocide, however, the acts listed in Art. II of the Genocide Convention must additionally be committed with “intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such.” Genocide Convention, art. I. The definition of a protected group under the Genocide Convention does not protect groups of persons generally, such as groups of people who find themselves under attack for political opinion reasons because they are in the wrong place at the wrong time. As one Trial Chamber Judgment at the International Criminal Tribunal for the Former Yugoslavia (ICTY) concluded, “the Genocide Convention does not protect all types of human groups. Its application is confined to national, ethnical, racial, or religious groups.” Prosecutor v. Krstic, Case
In a decision holding that Serbia violated international law by failing to prevent genocide, the ICJ also considered the definition of a “protected group” for purposes of the Genocide Convention. Bosnia and Herzegovina, 2007 I.C.J. at ¶¶ 193-196. This case serves as an instructive frame of reference. The ICJ held that to qualify as a protected group, the group “must have particular positive characteristics—national, ethnical, racial or religious—and not the lack of them.” Id. at ¶ 193. It held “Bosnian Muslims” constituted a protected group under the Convention, but that the negative definition of a group (“non-Serbs“) did not constitute a protected group. Id.
In holding that “non-Serbs” could not constitute a protected group, the court emphasized that there must be a collective “group identity” that is sought to be destroyed. Id. at ¶ 193. Accordingly, in an ethnically-diverse environment, like the one existing in the town of Srebrenica, the intent to eradicate any person who did not belong to the preferred group did not amount to the targeting of a specific group, which is the essence of genocide. Id. at ¶ 191. The decision went on to point to the drafters’ rejection of proposals to include political groups as illustrating the drafters’ “close attention to the positive identification of groups with specific distinguishing well-established, some said immutable, characteristics.” Id. at ¶ 194.
The general allegations of the complaint in this case describe in vivid detail the turmoil between the native inhabitants of the island and Rio Tinto, which led to the closure of the mine by the local residents in protest over the environmental destruction wrought by it. The complaint concludes its description of the events leading to the closure of the mine by asserting that “Bougainville is the first place in the world where an indigenous people have forced the closure of a mine that was raping the land and an environment, and have kept it closed.” The complaint goes on to describe the acts of violence and mayhem intentionally inflicted by Rio Tinto after its summoning of military force.
The complaint here amply shows why the residents of Bougainville constitute a protected group. The complaint defines the residents of Bougainville by reference to their “native way of life,” ancestral attachment to the land, distinct culture, and black skin color. Moreover, the complaint alleges that both Rio Tinto and the PNG government saw the residents of Bougainville as a distinct group. See Compl. (“Rio considered the native people to be inferior in every respect: socially, economically, politically, and racially.“); id. (quoting “the former commander of the PNG forces,” referring to the residents of Bougainville as a “distinctive people‘“); see also Bosnia and Herzegovina, 2007 I.C.J. at ¶ 191 (noting that “international jurisprudence accepts a combined subjective-objective approach to defining a protected group,” allowing for definition both by the group itself and by outsiders). The complaint thus adequately alleges that Bougainvilleans possessed “particular positive characteristics” and “particular group identity,” Bosnia and Herzegovina, 2007 I.C.J. at ¶ 193, both in their own eyes and in the eyes of others.
These allegations are more than enough to support the Bougainvilleans’ status as a protected group for the purpose of their genocide claim. This is true no matter whether they allege the shared “social and cultural” characteristics that comprise an ethnic identity, see David L. Nersessian, The Razor‘s Edge: Defining and Protecting Human Groups Under the Genocide Convention, 36 CORNELL INT‘L L.J.
Moreover, according to the complaint, Rio Tinto oversaw this mass infliction of death and suffering as a part of its pattern of behavior on account of its worldwide view that members of non-white races were “expendable.” Thus, the complaint alleges that this was Rio Tinto‘s worldwide modus operandi: “Rio‘s treatment of the Bougainville people and the environment was a part of a pattern of behavior it has perpetrated throughout the world where it has regarded the non-Caucasian indigenous people who live in the areas in which it is exploiting natural resources as racially inferior and expendable.”
Although the complaint‘s use of the term “non-Caucasian” might be read to conflict with Bosnia and Herzegovina‘s suggestion that protected groups must be defined in positive rather than negative terms, 2007 I.C.J. at ¶ 193, any conflict here is illusory, given the complaint‘s extensive allegations as to the “positive characteristics,” id., of the people of Bougainville. As in Bosnia and Herzegovina, the complaint‘s use of the negative identifier is “very limited,” id. at ¶ 196. The complaint overwhelmingly describes Bougainvilleans by reference to their own characteristics, rather than by contrast to characteristics they did not possess.
Thus, the killings of the native people of the island were committed on account of their race at least in part, and committed with “intent to destroy in whole or in part a national, ethnical, racial or religious group, as such” within the meaning of Article I of the Genocide Convention. The target was the indigenous population of the previously pristine and isolated island of Bougainville, whose members had previously had “only the vaguest contact with the modern world,” who were non-white, and who shared a homogenous racial identity. The allegations are sufficient to constitute genocide with respect to the Islanders. Even though the complaint alleges that Rio Tinto harbored virtually global racial animosity toward non-white indigenous peoples, the existence of animosity toward similar groups throughout the world cannot negate the legal consequences of an attempt to destroy a specific protected group in a particularized place.
The complaint adequately alleges a claim of genocide. The district court‘s original dismissal of the claim must be reversed.
B. War Crimes
The complaint alleges war crimes—in the form of murder—against the civilian population of Bougainville during a non-international armed conflict in violation of Common Article III of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Common Article III).
1. The prohibition against war crimes is a specific, universal, and obligatory internationally accepted norm.
War crimes are defined primarily by the Geneva Conventions, to which the United States, along with at least 180 na-
War crimes, regrettably, continue to have an all too contemporary resonance. A district court in Virginia has recently recognized the status of war crimes as sufficiently specific, obligatory, and universal to give rise to a cause of action under the
Claims for violations of the international norm proscribing war crimes are cognizable under the
ATS . By ratifying the Geneva Conventions, Congress has adopted a precise, universally accepted definition of war crimes. Moreover, through enactment of a separate federal statute, Congress has incorporated this precise definition into the federal criminal law.18 U.S.C. § 2441 . Thus, Congress has clearly defined the law of nations to include a binding prohibition on the commission of war crimes. Given this, and given Sosa‘s teachings, it follows that an allegation of a war crime states a cause of action under theATS .
In re Xe Servs. Alien Tort Litig., 665 F.Supp.2d 569, 582 (E.D.Va.2009).
The definition of war crimes found in Common Article III has been agreed to by the United States and more than 180 nations party to the Geneva Convention. Common Article III provides, in relevant part:
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities ... shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour....
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture....
Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, art. 3, Oct. 21, 1950, 75 U.N.T.S. 287 (Geneva IV). Like the provisions in international law defining genocide, this definition is sufficiently specific, obligatory, and universal to give rise to an
2. International law recognizes corporate liability for war crimes.
With respect to corporate liability for war crimes, at least two district courts have found that corporations may be liable for war crimes under the
The text of Common Article III binds “each Party to the conflict.” Geneva IV, art. III. Because parties to a conflict not of an international character by definition must include at least one non-state actor,
The Eleventh Circuit has noted that corporations may be liable under the
3. International law recognizes aiding and abetting liability for war crimes.
Criminal aiding and abetting liability for war crimes has been clearly established by the war crimes tribunals. See, e.g., Prosecutor v. Kvocka, Case No. IT-98-30/1-T, Judgment (Nov. 2, 2001) (holding an individual responsible for aiding and abetting war crimes pursuant to the joint criminal enterprise doctrine); Prosecutor v. Musema, Case No. ICTR-96-13-T, Judgment (Jan. 27, 2000). See also ICTY Statute art. 7(1) (providing for aiding and abetting liability for all crimes in its jurisdiction, including crimes against humanity and war crimes); ICTR Statute art. 6(1) (same); Rome Statute art. 25(3)(c) (same).
Under international law, however, the required mens rea for aiding and abetting war crimes is subject to dispute. On the one hand, as Amici International Law Scholars describe, the Nuremberg-era trials, the ICTY, and the ICTR have required the mens rea of knowledge in aiding and abetting cases. Brief of Amici Curiae International Law Scholars in Support of Plaintiffs-Appellants at 4-16 (Feb. 18, 2010) (citing, among other cases, United States v. Von Weizsaecker (The Ministries Case), 14 Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No. 10 (1949), Prosecutor v. Furundzija, Case No. IT-95-17/1/T, Judgment, ¶ 236 (Dec. 10, 1998), Prosecutor v. Rutaganda, Case No. ICTR-96-3-T, Judgment, ¶¶ 389-91, 416, 439 (Dec. 6, 1990)). On the other hand, the Rome Statute, art. 25(3)(c) states that aiding and abetting must be “for the purpose” of furthering the crime. See Doe, 654 F.3d at 70-71. In accord with the Rome Statute, Judge Katzmann‘s concurrence in Khulumani concluded that aiding and abetting under international law requires the mens rea of purpose and the actus reus of “substantial assistance.” Khulumani, 504 F.3d at 277 (Katzmann, J. concurring). See also Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 259 (2d Cir.2009) (stating that the mens rea for aiding and abetting liability under the
We need not resolve this dispute as to mens rea in order to conclude that customary international law gives rise to a cause of action for aiding and abetting a war crime under the
4. The complaint adequately alleges a war crimes claim.
The complaint alleges murder of civilians during the civil war between the people of Bougainville and the PNG, conduct which is clearly prohibited under Common Article III(1)(a) of the Fourth Geneva Convention. The complaint alleges that Rio Tinto induced the military action and intended such action, “to forcibly displace and destroy plaintiffs and members of the Class.” According to Plaintiffs, Rio Tinto “understood and intended” that their actions would “likely result in military action by the PNG and intended such action to take place even if it meant the death and/or injury of residents.” Plaintiffs also allege that Rio Tinto “understood that it had a great deal of the control over the situation” and “knew” that this was the only way it could reopen its profitable mine. Plaintiffs allege that Rio Tinto solicited the military action for its own private ends and directed the military response even “while reports of war crimes surfaced.”
Judge McKeown suggests that Plaintiffs do not allege Rio Tinto‘s specific intent to harm the residents of Bougainville. “Missing,” she says, “is the link between Rio Tinto and the PNG‘s alleged war crimes.” McKeown op. at 792. But Judge McKeown ignores Plaintiffs’ extensive allegations that Rio purposely induced the war crimes in order to protect its economic interests in PNG. Plaintiffs allege that Rio issued the PNG government “an ultimatum“: displace the local residents interfering with its mining operations, no matter the means, or Rio would abandon all investments on PNG. When the PNG government employed military means to fulfill Rio‘s demands, Plaintiffs allege, Rio provided the PNG military helicopters and vehicles to carry out the operations, even after reports of war crimes became public. When initial efforts were insufficient to displace the locals, PNG imposed a blockade on Bougainville; Plaintiffs allege that at a meeting “between PNG officials and two top Rio executives, one top Rio manager encouraged continuation of the blockade to ‘starve the bastards out....‘” Moreover, Rio allegedly assured the PNG government that the continued maintenance of the blockade was enough to prevent Rio from withdrawing from PNG, while Rio simultaneously attempted to repress reporting of the humanitarian crisis unfolding on the island. These allegations support much more than “an inference of mere knowledge on Rio Tinto‘s part,” McKeown op. at 792; it supports an inference that Rio Tinto actively encouraged the killing of Bougainvilleans. It is “sufficient factual matter” for plaintiffs “to ‘state a claim to relief that is plausible on its face,‘” even if plaintiffs must allege that Rio Tinto specifically intended to harm the residents of Bougainville. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
In any event, it is far from clear that such specific intent is necessary to satisfy a mens rea of purpose under international law. As our concurring colleagues note, Pregerson Op. at 774 n. 1, the “purpose” language of the Rome Statute‘s Article 25(c)(3) “has yet to be construed by the ICC and may be interpreted to be consistent with customary international law, which does not contain a specific intent requirement.” Brief of Amici Curiae International Law Scholars in Support of Plaintiffs-Appellants at 20-21 (Feb. 18,
We conclude that the allegations are sufficient to state a war crimes claim. The complaint alleges purposeful conduct undertaken by Rio Tinto with the intent to assist in the commission of violence, injury, and death, to the degree necessary to keep its mines open.
C. Crimes Against Humanity
The complaint alleges crimes against humanity arising from a food and medical blockade. Under customary international law, primarily defined through the international criminal tribunals at Nuremberg and elsewhere, crimes against humanity require (1) a widespread or systematic attack directed against a civilian population; and (2) a prohibited act. See, e.g., Rome Statute, art. 7, ICTY Statute, art. 5; ICTR Statute, art. 3.
Assuming, without deciding, that Plaintiffs allege the blockade was a widespread and systematic attack, then whether Plaintiffs’ blockade allegation would establish a violation of the law of nations giving rise to an
All statutes list “extermination” as a prohibited act amounting to a crime against humanity. Rome Statute, art. 7(1)(b); ICTY Statute, art. 5(b); ICTR Statute art. 3(b). Their definitions of what constitutes extermination, however, differ. Only the Rome Statute refers to the denial of access to the necessities of life. Its definition of “extermination” states that the term “includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population....” Rome Statute, art. 7(2)(b). Notably, the Rome Statute does not mention a blockade. Moreover, the deprivation of access to necessities is not necessarily synonymous with a blockade, because such deprivation can be effected without the imposition of a blockade.
Since none of the statutes explicitly include a blockade in their definition of extermination, Plaintiffs’ claim for crimes against humanity can come within the statutes only if the blockade constitutes “other inhumane acts.” A food and medical blockade may well be an “other inhumane act[]” constituting a crime against humanity. The International Law Commission has recognized that the statutes could not list every possible crime against humanity, stating that “it was impossible to establish an exhaustive list of the inhumane acts which might constitute crimes against humanity.” Prosecutor v. Kupreskic, et al., IT-95-16-T, Judgment, ¶ 565 n. 828 (Jan. 14, 2000) (quoting Report of the International Law Commission on the Work of its Forty-Eighth Session, 6 May-26 July 1996, UNGAOR 51st Sess. Supp. No. 10 (A/51/10) (Crimes Against the Peace and Security of Mankind), ¶ 17).
To meet the Sosa test, however, the blockade must be a violation of a recognized specific norm. The statutes do not create such a norm. There is no source of recognized international law that yet identifies a food and medical blockade as an “other inhumane act[]” or otherwise qualifies it as a crime against humanity. In the absence of any such source, a food and medical blockade does not violate a specific internationally recognized norm within the meaning of Sosa.
The district court‘s original dismissal of Plaintiffs’ claim alleging crimes against humanity arising from the medical and food blockade must be affirmed. We note that Plaintiffs’ claim for genocide is also pled as a crime against humanity, and as we have explained, the genocide claim does satisfy the Sosa requirements.
D. Racial Discrimination
The complaint alleges that Rio Tinto engaged in racial discrimination “under color of law,” although it does not explain its theory. There is a great deal of support for the proposition that systematic racial discrimination by a state violates a jus cogens norm and therefore is not barred from consideration by the act of state doctrine. See Siderman de Blake, 965 F.2d at 718 (holding a violation of a jus cogens norm is not a sovereign act); see also id. at 717 (noting systematic racial discrimination violates a jus cogens norm when it is committed by a state) (citing Restatement (Third), § 702 cmt. n).
Assuming that Plaintiffs have adequately alleged action under color of law, the controlling question then becomes whether the international norm prohibiting systematic racial discrimination is sufficiently specific and obligatory to give rise to a cause of action under the
Additionally, the treaty itself provides a definition of racial discrimination1 but does not provide any such definition of systematic racial discrimination, nor even include the word “systematic.” See International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195 (entered into force Jan. 4, 1969) (“Racial Discrimination Convention“). Notably, the international norm prohibiting systematic racial discrimination has been given no further content through international tribunals, subsequent treaties, or similar sources of customary international law. The Racial Discrimination Convention is in this way quite different from the Genocide Convention, whose definition of genocide has been repeatedly reinforced in international and domestic law. See supra, Section IV(A)(1).
As the Supreme Court noted in Sosa, “federal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when § 1350 was enacted.” 542 U.S. at 732.
See also Marcos II, 25 F.3d at 1475 (“Actionable violations of international law must be of a norm that is specific, universal, and obligatory.“). In holding on remand that the racial discrimination claim need not be exhausted, the district court understood, as do we, that there is a universally recognized prohibition against systematic racial discrimination. The district court, however, on remand did not address the additional requirement under Sosa that the prohibition be sufficiently specific and obligatory. The district court‘s original dismissal of the claim must be affirmed on the ground that the norm does not meet the Sosa requirements.
It is important to recognize that the claim of racial discrimination as set forth in Count IV of the complaint is for a violation of the Racial Discrimination Convention. It is not a claim of apartheid as defined in the relevant international statutes. See International Convention on the Suppression and Punishment of the Crime of Apartheid, 13 I.L.M. 50, 1015 U.N.T.S. 243 (1976); see also Rome Statute of the International Criminal Court (“Rome Statute“), July 17, 1998, 2187 U.N.T.S. 90 (defining the crime of apartheid as “inhumane acts ... committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime“). A claim premised on apartheid may be cognizable under the
V. CONCLUSION
The district court‘s order on prudential exhaustion is AFFIRMED. The district court‘s dismissal of the claims for racial discrimination and crimes against humanity is AFFIRMED. The dismissal of the claims for genocide and war crimes is REVERSED. The case is REMANDED to the district court for further proceedings on the claims of genocide and war crimes.
AFFIRMED in part; REVERSED and REMANDED in part. Each party to bear its own costs.
REINHARDT, Circuit Judge, concurring:
I concur fully in the results of the majority opinion but disagree with a limited part of its reasoning, contained in Parts II.C and IV.B.3, regarding aiding and abetting.1 I would look to domestic rather than international law in analyzing this issue. I also join Part II of Judge McKeown‘s opinion, which clarifies that domestic law predominantly governs the issue of corporate liability.
The applicability of domestic law to resolve questions under the
I. Aiding and Abetting
I continue to adhere to the view that in determining the scope of third-party tort liability under the
I agree, instead, with the reasoning of Judge Hall‘s concurring opinion in Khulumani v. Barclay Nat. Bank Ltd., 504 F.3d 254 (2d Cir.2007). As Judge Hall writes, ”Sosa at best lends Delphian guidance on
Like Judge Hall, I would apply the federal common law aiding and abetting standard of Halberstam v. Welch, 705 F.2d 472 (D.C.Cir.1983), which relied on Restatement (Second) of Torts § 876(b); see also Sarei v. Rio Tinto, PLC, 487 F.3d 1193, 1202 (9th Cir.2007), vacated, 499 F.3d 923 (9th Cir.2007) (citing Restatement §§ 876-77 as among “well-settled theories of vicarious liability under federal common law“).2 This standard provides that for a defendant to incur liability, “(1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance; [and] (3) the defendant must knowingly and substantially assist the principal violation.” Halberstam, 705 F.2d at 477.
Plaintiffs have adequately alleged Rio Tinto‘s liability under this standard. For this reason, I agree with the majority‘s decision to reverse the district court‘s dismissal of the war crimes claim.
II. Corporate Liability
For similar reasons, I would look to domestic law to determine whether a corporation may be held liable under the
III. Conclusion
The
PREGERSON, Circuit Judge, concurring in part and dissenting in part, with whom RAWLINSON, Circuit Judge, joins:
For the reasons stated by the majority, I agree that we must reverse the district
I. Aiding and Abetting Liability
I agree with the majority that there is universal recognition of aiding and abetting liability for war crimes under international law. Maj. op. at 765-66. I disagree, however, with the majority‘s decision to acknowledge only a mens rea standard of “purposive action in furtherance of a war crime,” reserving for another day a decision as to whether merely knowledge is sufficient. Maj. op. at 765. I believe we can hold with confidence that knowledge that one is assisting unlawful activity is the applicable mens rea standard for aiding and abetting liability for war crimes because, as discussed below, such a standard reflects sufficiently universal customary international law.
As the majority acknowledges, the Nuremberg-era trials, the International Criminal Tribunal for the former Yugoslavia (“ICTY“), and the International Criminal Tribunal for Rwanda (“ICTR“) have all required the mens rea of knowledge in aiding and abetting cases. In fact, “[t]he vast majority of international legal materials clearly prescribe knowledge as the mens rea requirement for aiding and abetting.” In re S. African Apartheid Litig., 617 F.Supp.2d 228, 259 (S.D.N.Y.2009) (citing Prosecutor v. Furundzija, Case No. IT-95-17/1, Trial Chamber Judgment, ¶ 245 (Int‘l Crim. Trib. for the Former Yugoslavia Dec. 10, 1998)); Prosecutor v. Vasiljevic, Case No. IT-98-32-A, Appeals Judgment ¶ 102 (Int‘l Crim. Trib. for the Former Yugoslavia Feb. 25, 2004) (“In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of the specific crime of the principal.“); Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Trial Chamber Judgment, ¶ 545 (Sept. 2, 1998) (“[A]n accused is liable as an accomplice to genocide if he knowingly aided or abetted or instigated one or more persons in the commission of genocide, while knowing that such a person or persons were committing genocide, even though the accused himself did not have the specific intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.“); Prosecutor v. Tadic, Case No. IT-94-1-T, Trial Chamber Judgment, ¶¶ 674, 692 (Int‘l Crim. Trib. for the Former Yugoslavia May 7, 1997) (requiring knowing participation or “a conscious decision to participate” via the provision of substantial assistance); United States v. Flick, 6 Trials of War Criminals Before the Nuremberg Military Tribunals 1217 (1952) (“One who knowingly by his influence and money contributes to the support [of a violation of the law of nations] must, under settled
Despite the foregoing multitude of international sources uniformly concluding that knowledge is the applicable mens rea, the majority principally relies on the Rome Statute of the International Criminal Court (the “Rome Statute“) as the basis for a purpose mens rea standard. Maj. op. at 765-66. But not every provision of the Rome Statute was intended to reflect customary international law. See David Scheffer and Caroline Kaeb, The Five Levels of CSR Compliance: The Resiliency of Corporate Liability under the Alien Tort Statute and the Case for a Counterattack Strategy in Compliance Theory, 29 Berkeley J. Int‘l L. 334, 348 (2011); see also Doe v. Exxon Mobil Corp., 654 F.3d 11, 35-38 (D.C.Cir.2011) (citing Prosecutor v. Germain Katanga & Mathieu Ngudjolo Chui, Case No. ICC-01/14/01/07, Decision on the Confirmation of Charges, ¶¶ 507-08 (Sept. 30, 2008)). Moreover, the Rome Statute was never intended to supersede, constrain or limit existing customary international law, including the universal knowledge mens rea standard—any deviations from customary international law should be viewed as specific only to cases heard under the jurisdiction of the International Criminal Court (“ICC“). See Brief of Amici Curiae International Law Scholars in Support of Plaintiffs-Appellants at 16-18 (Feb. 18, 2010); In re S. African Apartheid Litig., 617 F.Supp.2d at 261 n. 176 (“A derogation in the Rome Statute from customary international law ‘is considered a lex specialis in relation to the general principle’ rather than a modification of customary international law.” (quoting Paola Anna Pillitu, European ‘Sanctions’ Against Zimbabwe‘s Head of State and Foreign Minister: A Blow to Personal Immunities of Senior State Officials?, 1 J. Int‘l Crim. Just. 453, 457 n. 18 (2003))); Mohamed M. El Zeidy, Critical Thoughts on Article 59(2) of the ICC Statute, 4 J. Int‘l Crim. Just. 448, 454 (2006) (noting that detailed arrest procedures in the Rome Statute are not drawn from customary international law and are therefore specific to the ICC); see also Doe, 654 F.3d at 35-38 (noting that the Rome Statute itself acknowledges that it was not meant to affect or amend existing customary international law where the Rome Statute specifically provides that it is not to “be interpreted as limiting or prejudicing in any way existing or developing rules of international law‘” (quoting Rome Statute, art. 10)).
Under the Rome Statute—and under customary international law—there is no difference between amorality and immorality. One who substantially assists a violation of the law of nations is equally liable if he or she desires the crime to occur or if he or she knows it will occur and simply does not care. In re S. African Apartheid Litig., 617 F.Supp.2d at 262.
For the foregoing reasons, I conclude that knowledge is the applicable mens rea standard for aiding and abetting liability.
II. The Food and Medical Blockade
Under customary international law, a complaint alleging crimes against humanity requires an allegation of a widespread or systematic attack directed against a civilian population and a prohibited act. See, e.g., Rome Statute, art. 7, ICTY Stat-
tional statutes. See Rome Statute, art. 7(a), (f); ICTY Statute, art. 5(a), (f); ICTR Statute art. 3(a), (f).
Plaintiffs’ complaint alleges that Rio Tinto supported and encouraged Papua New Guinea‘s blockade that “prevented medicine, clothing and other essential items from reaching the people of Bougainville, [and as a result], [h]ospitals were forced to close, women died needlessly in childbirth and young children died from easily preventable diseases.” Compl. ¶ 12. Furthermore, the complaint alleges that the blockade caused the death of more than 10,000 Bougainvilleans, including more than 2,000 children in the first two years of the siege.3 Compl. ¶¶ 12, 196.
Under international law “[i]t can be said that the accused is guilty of murder if he or she[,] engaging in conduct which is unlawful, intended to kill another person or to cause this person grievous bodily harm, and [] caused the death of that person.” Prosecutor v. Kupreskic, et al., IT-95-16-T, Trial Chamber Judgment, ¶ 560 (Int‘l Crim. Trib. for the Former Yugoslavia Jan. 14, 2000). Under this standard, Plaintiffs have adequately alleged murder, a prohibited act under various international statutes. See Rome Statute, art. 7(a); ICTY Statute, art. 5(a); ICTR Statute art. 3(a). Moreover, the complaint alleges that the food and medical blockade “foreseeably
Plaintiffs further allege that “the medical blockade violates the Torture Convention, as pain and death were intentionally inflicted for the purpose of punishing people for having closed the mine, and intimidating and coercing them into moving away from the mine and dropping their opposition.” Compl. ¶¶ 212, 214. One Rio Tinto official is alleged to have said, during a discussion regarding the devastating effects of the blockade, that the blockade should be continued to “starve the bastards out [so the people] will come around.” Compl. ¶ 192.
The right to be free from torture “is fundamental and universal, a right deserving of the highest status under international law, a norm of jus cogens.” Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 717 (9th Cir.1992) (surveying and collecting various cases, statutes and scholarly articles). Torture is defined under international law as:
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind....
The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 23 I.L.M. 1027, 1465 U.N.T.S. 85 (“Torture Convention“). This well-defined jus cogens norm satisfies Sosa‘s specific, universal and obligatory requirement. See Sosa, 542 U.S. at 732, 124 S.Ct. 2739; see also In re Estate of Ferdinand Marcos, Human Rights Litig. (Marcos II), 25 F.3d 1467, 1475 (9th Cir.1994) (holding that jurisdiction under the Alien Tort Statute was proper because there is a jus cogens norm against torture). Therefore, Plaintiffs have adequately stated an Alien Tort Statute claim for torture as a crime against humanity under international law because, consistent with the requirements of the Torture Convention, Plaintiffs allege that Rio Tinto intentionally caused severe injury and death to coerce and punish the people of Bougainville.
Even if the food and medical blockade did not constitute a crime against humanity, such an intentional deprivation of essential supplies would still constitute a war crime. See Compl. ¶¶ 49, 56. Food and medical blockades are outlawed by the Fourth Geneva Convention, which, as the majority acknowledges, provides well-recognized definitions of war crimes and is “sufficiently specific, obligatory, and universal to give rise to a cause of action
Specifically, Article 23 of the Fourth Geneva Convention requires that during conflicts, nations “shall allow the free passage of all consignments of medical and hospital stores,” and “shall likewise permit the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases.”
III. Systematic Racial Discrimination
“[A]ny doctrine of superiority based on racial differentiation is scientifically false, morally condemnable, socially unjust and dangerous, and [] there is no justification for racial discrimination, in theory or in practice, anywhere....”
International Convention on the Elimination of All Forms of Racial Discrimination Preamble, Dec. 21, 1965, 5 I.L.M. 352, 660 U.N.T.S. 195 (“Racial Discrimination Convention“).
I believe that there is a jus cogens norm prohibiting systematic racial discrimination, and that because the norm is jus cogens, our federal courts necessarily have jurisdiction under the Alien Tort Statute. I do not agree with the majority‘s conclusion that the international prohibition against systematic racial discrimination does not satisfy Sosa‘s requirement that an international norm must be specific, universal, and obligatory to be cognizable under the Alien Tort Statute. See Sosa, 542 U.S. at 732, 124 S.Ct. 2739.
First, many courts agree that there is a jus cogens norm prohibiting systematic racial discrimination. See Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 717 (9th Cir.1992) (noting that the Restatement “identif[ies] jus cogens norms prohibiting genocide, slavery, murder or causing disappearance of individuals, prolonged arbitrary detention, and systematic racial discrimination“) (citing Restatement (Third) of Foreign Relations Law of the
Second, because there is a jus cogens norm against systematic racial discrimination, I believe there is necessarily federal court jurisdiction under the Alien Tort Statute. As the majority notes, a jus cogens norm is defined as a norm that is accepted and recognized by the international community of states as a whole, “from which no derogation is permitted.” Maj. op. at 757 (quoting Siderman de Blake, 965 F.2d at 714 (quoting Vienna Convention on the Law of Treaties art. 53, May 23, 1969, 8 I.L.M. 679, 1155 U.N.T.S. 331)). In contrast to customary international law, which is “derive[d] solely from the consent of states, the fundamental and universal norms constituting jus cogens transcend such consent.” Siderman de Blake, 965 F.2d at 715. Further, international laws and agreements that contravene jus cogens norms are considered void. Id. at 715-16 (“[J]us cogens [norms] ‘prevail over and invalidate international agreements and other rules of international law in conflict with them.‘” (quoting Restatement (Third) § 102 cmt. k and citing Vienna Convention on the Law of Treaties art. 53, May 23, 1969, 8 I.L.M. 679, 1155 U.N.T.S. 331)). Jus cogens norms “enjoy the highest status within international law.” Id. at 715 (quoting Comm. of U.S. Citizens Living in Nicaragua, 859 F.2d at 940). In sum, jus cogens norms represent fundamental components of the ordered international community, and jus cogens’ status at the top of the hierarchy of international law is beyond question. Thus, “a jus cogens violation is, by definition, a violation of [a] specific, universal, and obligatory international norm[].” Doe I v. Unocal Corp., 395 F.3d 932, 945 n. 15 (9th Cir.2002) (internal quotation marks omitted); see also Siderman de Blake, 965 F.2d at 715-16; Alvarez-Machain v. United States, 266 F.3d 1045, 1050 (9th Cir.2001) (“[A] jus cogens violation satisfies the specific, universal, and obligatory standard....” (internal quotation marks omitted)); Joel Slawotsky, The New Global Financial Landscape: Why Egregious International Corporate Fraud Should Be Cognizable under the Alien Tort Claims Act, 17 Duke J. Comp. & Int‘l L. 131, 150 (2006). Consequently, once a norm is determined to be jus cogens, it necessarily satisfies Sosa‘s jurisdictional test. See Marcos II, 25 F.3d at 1475 (holding that jurisdiction under the Alien Tort Statute was proper because there is a jus cogens norm against torture); In re Estate of Ferdinand E. Marcos Human Rights Litig. (Marcos I), 978 F.2d 493, 500 (9th Cir.1992) (“Under international law, any state that engages in official torture violates jus cogens. We therefore conclude that the district court did not err in founding jurisdiction on a violation of the jus cogens norm prohibiting official torture.” (internal citations and quotations omitted)).
The majority argues that Plaintiffs’ systematic racial discrimination claim is based solely on the Racial Discrimination Convention. The majority then concludes that the systematic racial discrimination claim must be dismissed, because, in the majority‘s view, the Racial Discrimination Convention is not specific and obligatory, as required under Sosa.5 Maj. op. at 769 I
Having determined that Plaintiffs have cleared their jurisdictional hurdle, I further conclude that Plaintiffs’ factual allegations adequately state a claim for systematic racial discrimination. Plaintiffs’ complaint alleges that all of the human rights abuses were the “direct consequence of Rio Tinto‘s deliberate policy of systematic racial discrimination.” Compl. ¶ 238. For example, Plaintiffs allege that, because Rio Tinto “regarded the native people as inferior,” Rio Tinto committed the following unlawful acts: Rio Tinto encouraged and supported the food and medical blockade that resulted in the deaths of thousands of people; Rio Tinto housed mine workers in “slave-like conditions“; Rio Tinto established a “differential wage system[ ]” whereby indigenous Bougainvillean workers were paid significantly less than white workers performing similar work; Rio Tinto relocated villagers to make way for mining operations and housed them in “intolerable” and “apartheid-like conditions“; and Rio Tinto treated the environment “with wanton disregard,” polluting at levels that “would not have occurred in an area populated by Caucasians.” See Compl. ¶¶ 168-71, 173, 175, 237-39, 244.
Additionally, because systematic racial discrimination violates a jus cogens norm only when it is committed as a matter of state policy, Plaintiffs must adequately allege either direct state action or action by a private party under color of law. See Restatement (Third), § 702 cmts. i & n. Plaintiffs have met their burden. Plaintiffs’ complaint alleges that the numerous violations were carried out under color of law because the Papua New Guinea government had a significant stake in the mining operation. Compl. ¶ 111. Therefore, Plaintiffs allege, all of “Rio [Tinto‘s] actions were done with the concurrence and authority of the [Papua New Guinea]
Conclusion
The human rights violations alleged by Plaintiffs are matters of universal concern, Rio Tinto‘s alleged actions resulted in the destruction of the natural environment and the tragic deaths of many thousands of indigenous people on the island of Bougainville. For the reasons discussed above, I conclude that knowledge rather than purpose is the appropriate mens rea standard for aiding and abetting liability for war crimes claims under the Alien Tort Statute. Furthermore, I conclude that Plaintiffs’ claims for (1) crimes against humanity and war crimes based on the food and medical blockade, and (2) systematic racial discrimination, may be heard in the United States federal courts pursuant to the Alien Tort Statute. Therefore, the district court‘s dismissal of these claims must be reversed.
McKEOWN, Circuit Judge, concurring in part and dissenting in part, joined as to Part II by Judges REINHARDT and BERZON:
The Alien Tort Statute (“ATS“), albeit short on words, is a perplexing statute. Given the ink spilled in many judicial opinions, concurrences, and dissents, as well as scholarly articles, this brevity has not netted clarity.
Nonetheless, despite the many novel issues in this case, a few defining principles emerge.
Under the ATS, the federal courts have jurisdiction over claims for torts in violation of the law of nations. The law of nations is equally clear that genocide and war crimes are jus cogens violations of international law wherever they occur and whoever commits those crimes, whether an individual, group, corporation, or government. Importantly, one defining feature of the universal, specific, and obligatory norms prohibiting genocide and war crimes is the focus of those prohibitions on the identities of the victims of those crimes, as opposed to the identities of the perpetrators.
I concur in the majority‘s holding that the ATS may give rise to tort actions based on extraterritorial conduct by corporations. I am flattered that the majority has adopted some of my language regarding these issues. However, I write separately because it is important to emphasize that the federal common law and the history of tort liability in domestic law provide essential support for both the extraterritorial reach of claims under “the law of nations” and corporate liability under those causes of action. Further, in my view, Sarei has not stated a claim for genocide or war crimes. I would remand to the district court to consider whether amendment is proper and therefore respectfully dissent from Parts IV(A)(3) and IV(B)(4) of the majority opinion.
I. Claims Under “The Law of Nations” Encompass Extraterritorial Conduct.
I agree with the result the majority reaches—that claims based on occurrences abroad may give rise to an ATS suit—but write separately to highlight the historical
The majority appropriately concludes that the absence of specific language in the statute establishing extraterritorial effect is not a barrier to extraterritorial application of the ATS both because the statute has other indicia of extraterritorial applicability and because the statute itself does not provide the cause of action. See Maj. op. at 744-45. The Supreme Court underscored this principle in its most recent pronouncement on extraterritoriality. In Morrison, the Court held that a “clear indication of an extraterritorial application” may be found even in the absence of specific statutory language indicating Congress intended the statute to apply extraterritorially. 130 S.Ct. at 2883. The historical context of the ATS, according to the majority, provides abundant indication that the jurisdictional grant was intended to include claims alleging violations of the law of nations occurring outside of the United States. Maj. op. at 744-45. The history of the ATS, and particularly its ties to piracy, are “strong indications that Congress intended the Act to apply outside the United States.” Maj. op. at 747.
At the time of its enactment, the ATS was intended to encompass conduct both within and beyond the United States, including both crimes against foreign ambassadors in the United States and piracy. See Sosa v. Alvarez-Machain, 542 U.S. 692, 715-17, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004) (“It was this narrow set of violations of the law of nations [violation of safe conducts, infringement of the rights of ambassadors, and piracy], admitting of a judicial remedy and at the same time threatening serious consequences in international affairs, that was probably on minds of the men who drafted the ATS with its reference to tort.“). An opinion by Attorney General Bradford in 1795—a mere six years after adoption of the ATS—confirms this interpretation. Giving
Because the ATS targeted violations of the law of nations at home and abroad and did so by providing the law of nations—an international body of law—as the source of the cause of action, both the international focus and the nature of the harm (violations of the law of nations generally and piracy specifically) signal congressional understanding that the ATS‘s jurisdictional grant extends to torts committed outside of the United States.
Following Morrison, the Eleventh Circuit reiterated that extraterritoriality may derive from the international nature of the harm addressed by the statute, among other factors. See United States v. Belfast, 611 F.3d 783, 811 (11th Cir.2010) (“intent[ ] [of extraterritorial applicability] of course may appear on the face of the statute, but it may also be ‘inferred from ... the nature of the harm the statute is designed to prevent,’ from the self-evident ‘international focus of the statute,’ and from the fact that ‘limit[ing] [the statute‘s] prohibitions to acts occurring within the United States would undermine the statute‘s effectiveness.‘“) (quoting United States v. Plummer, 221 F.3d 1298, 1310 (11th Cir.2000)). This same principle applies to the ATS.
Further, “[c]ommon law courts of general jurisdiction regularly [have] adjudicate[d] transitory tort claims between individuals over whom they exercise personal jurisdiction, wherever the tort occurred.” Filartiga v. Pena-Irala, 630 F.2d 876, 885 (2d Cir.1980) (emphasis added). In holding that the ATS applies extraterritorially, the Second Circuit recited the history of American and British courts adjudicating extraterritorial tort claims. See id. (citing Lord Mansfield in Mostyn v. Fabrigas, 1 Cowp. 161 (1774); McKenna v. Fisk, 42 U.S. (1 How.) 241, 248, 11 L.Ed. 117 (1843); Dennick v. R.R. Co., 103 U.S. 11, 26, 26 L.Ed. 439 (1880); Slater v. Mexican Nat‘l R.R. Co., 194 U.S. 120, 24 S.Ct. 581, 48 L.Ed. 900 (1904)). Similarly, the D.C. Circuit concluded that “[e]xtraterritorial application of the ATS would reflect the contemporaneous understanding that, by the time of the Judiciary Act of 1789, a transitory tort action arising out of activities beyond the forum state‘s territorial limits could be tried in the forum state.” Doe, 654 F.3d at 24-25. Indeed, “[i]t is not extraordinary for a court to adjudicate a tort claim arising outside of its territorial jurisdiction.” Filartiga, 630 F.2d at 885.
Taken together, the language of the statute, the historical context, and the nature of the harm encompassed by “the law of nations,” supply the necessary “clear indication” that the ATS‘s jurisdictional grant over torts in violation of the law of nations includes within its ambit at least some conduct occurring outside of the
II. The ATS May Give Rise To Corporate Liability.
I join the majority‘s invocation of corporate liability under the ATS: “[t]he ATS contains no ... language and has no ... legislative history to suggest that corporate liability was excluded and that only liability of natural persons was intended.” Maj. op. at 748. At the turn of the Twentieth Century, no less than the Attorney General acknowledged that corporations could be liable under the ATS. See 26 Op. Atty. Gen. 250, 252-53 (1907) (opining that the ATS provided a mechanism through which to hold a U.S. corporation liable for violating provisions of the Convention Between the United States of America and the United States of Mexico Touching the International Boundary Line Where it Follows the Bed of the Rio Colorado (Nov. 2, 1884)). Thus, the view that ATS liability extends to a corporation that commits a tort in violation of the law of nations is one that has held sway for, at the very least, nearly half of the statute‘s existence, and nothing before that time suggests a contrary position.
Jurists and scholars debate whether we look to international or domestic law to determine whether a corporation may be sued under the ATS. See Doe, 654 F.3d at 41 (“corporate liability differs fundamentally from the conduct-governing norms at issue in Sosa, and consequently customary international law does not provide the rule of decision“); id. at 81-83 (Kavanaugh, J., dissenting in part) (looking to international law and concluding corporate liability may not lie under the ATS); Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 127-31 (2d Cir.2010) (concluding international law does not provide for corporate liability); id. at 175 (Leval, J., concurring) (noting international law leaves the provision of civil remedies to the discretion of individual states); Mara Theophila, “Moral Monsters” Under the Bed: Holding Corporations Accountable for Violations of the Alien Tort Statute after Kiobel v. Royal Dutch Petroleum Co., 79 Fordham L. Rev. 2859 (2011) (summarizing the debate as to the law determining corporate liability under the ATS). The source of this split is Sosa‘s holding that the ATS is jurisdictional only but that “federal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when § 1350 was enacted.” 542 U.S. at 732, 124 S.Ct. 2739 (emphasis added).
An international norm is the sine qua non of an ATS suit, yet the tort cause of action is defined by customary international law as it has been incorporated into the federal common law. See Sosa, 542 U.S. at 724, 124 S.Ct. 2739 (“The [ATS] ... is best read as having been enacted on the understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability....“). Because the common law, with its incorporation of international law, provides the cause of action, I would hold that courts should first look to the common law to see if the corporate defendant is within the ambit of the cause of action. Concluding that federal common law provides a long and consistent history of corporate liability in tort, I would then look to international law to insure the corporate defendant is included within the law of nations’ norm allegedly violated in a given suit. As to the amorphous line between a substantive offense under international law and other aspects of a cause of action under domestic law, I am cognizant that ”Sosa at best lends Delphian guidance.” Khulumani v. Barclay Nat‘l Bank Ltd., 504 F.3d 254, 286 (2d Cir.2007) (Hall, J. concurring); see also Doe, 654 F.3d at 41-42 (same). Without the international norm, there can be no ATS cause of action, so the threshold challenge is defining the norm. Does the norm include the identification of the defendant or is that a function of the cause of action? I submit in the case of corporate liability that this distinction makes no difference. International law admits to corporate liability, as does domestic law.2
In an effort to follow the limited guidance provided in Sosa and make sense of the ATS‘s jurisdictional grant, I would begin the domestic law analysis by returning to the basics of statutory interpretation. See Ransom v. FIA Card Services, — U.S. —, 131 S.Ct. 716, 723-24, 178 L.Ed.2d 603 (2011) (instructing courts to begin with the plain language of the statute). The language of the statute, as the Supreme Court has told us, “by its terms does not distinguish among classes of defendants[.]” Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 438, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989). The statute provides that the plaintiff must be an alien but it says nothing that would preclude corporate defendants. See
Although we know very little about the First Congress‘s intent in enacting the ATS, see Sosa, 542 U.S. at 718-19, 124 S.Ct. 2739, the mainstream understanding of tort liability in the time frame surrounding the statute‘s enactment likely informed congressional action. See Lane v. Pena, 518 U.S. 187, 201, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996) (“[C]ongressional intent with respect to a statutory provision must be interpreted in the light of the contemporary legal context.“). The ATS is, after all, a grant of jurisdiction for actions in tort.
[F]or acts done by the agents of a corporation, either in contractu or in delicto, in the course of its business, and of their employment, the corporation is responsible, as an individual is responsible under similar circumstances. At a very early period, it was decided in Great Britain, as well as in the United States, that actions might be maintained against corporations for torts; and instances may be found, in the judicial annals of both countries, suits for torts arising from the acts of their agents, of nearly every variety.
The Philadelphia, Wilmington, and Baltimore R.R. Co. v. Quigley, 62 U.S. 202, 210, 21 How. 202, 16 L.Ed. 73 (1858) (holding a corporation capable of “malice” and liable in tort for libel); see also Conard v. Pacific Ins. Co., 31 U.S. 262, 281-82, 6 Pet. 262, 8 L.Ed. 392 (1832) (holding a company liable for trespass); Lake Shore & M.S. Ry. Co. v. Prentice, 147 U.S. 101, 109, 13 S.Ct. 261, 37 L.Ed. 97 (1893) (“A corporation is doubtless liable, like an individual,
The long and consistent tradition of corporate liability in tort under the federal common law leaves no doubt that corporate liability is available under the ATS. See Cook Cnty. of Illinois v. Chandler, 538 U.S. 119, 125, 123 S.Ct. 1239, 155 L.Ed.2d 247 (2003) (recounting the history of corporate personhood and the understanding at the turn of the Nineteenth Century that corporations could sue and be sued); see also Doe, 654 F.3d at 47 (stating that “[c]orporate immunity ... would be inconsistent with the ATS because by 1789 corporate liability in tort was an accepted principle of tort law in the United States” and recounting the early history of corporate liability in tort under the common law). That a tort claim may be available against a corporation is, in fact, an unremarkable result. See Chandler, 538 U.S. at 125-27, 123 S.Ct. 1239 (discussing the history of corporate personhood and liability and its continued vitality in the absence of statutory restrictions). Instead, it would be remarkable if corporations were exempt from liability under the ATS.
Over the two hundred plus years of the statute‘s existence, Congress has not amended the statute to preclude corporate liability or otherwise abrogate federal courts’ holdings in ATS cases. Rather, “Congress has not only expressed no disagreement with [federal courts’ holdings allowing ATS suits for violations of customary international law] ... but has responded ... by enacting legislation [the TVPA] supplementing the judicial determination in some detail.” Sosa, 542 U.S. at 731, 124 S.Ct. 2739. Just as the Court found it significant that Congress did not amend or supplant the ATS when it enacted the TVPA, I find it significant that Congress did not amend the ATS to preclude corporate liability when it adopted the TVPA‘s clear restriction to natural person defendants. See
The availability of a tort action against a corporation under domestic law does not end the story. Because a claim under the ATS may lie only if the norm allegedly violated includes the named defendant within its ambit, we also must look to international law. See Sosa, 542 U.S. at 724, 124 S.Ct. 2739. Here, my inquiry is the same as the majority‘s—that is, I would ask whether the international norm at issue excludes private corporate actors from its scope. See Maj. op. at 747-48. The starting point of this inquiry is whether private or non-state actors fall within the international norms. Although the extent to which non-state actors are bound to abide by international law has varied over the centuries, in modern times many norms of international law include private actors within their ambit. See Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 794 (D.C.Cir.1984) (Edwards, J., concurring) (discussing shifts in scholarly and judicial understandings of private parties’ responsibilities under international law from the Eighteenth Century through the late Twentieth Century).
Next it is important to recognize that the handful of international law violations that may give rise to an ATS claim are often restricted by the identity of the perpetrator, the identity of the victim, or
The two international prohibitions at issue in this case, as the majority details, are restricted in scope primarily by the identities of the victims. See Maj. op. at 758-59, 764-65. Genocide is defined almost entirely based upon the identity of the victim—with no restrictions as to the identity of the perpetrator. See Bosnia and Herzegovina v. Serbia, 2007 I.C.J. 91, ¶ 167 (Feb. 26) (emphasizing the universal prohibition of genocide and its status as a binding norm upon both state and non-state actors). War crimes in violation of Common Article III are defined with reference to both the perpetrator (a party to the conflict, which necessarily includes both state and non-state actors in a non-international armed conflict) and the victim (a civilian). See
The particularity of each norm highlights the importance of conducting a norm-specific inquiry as to each alleged violation of international law to determine whether there is jurisdiction under the ATS. See Maj. op. at 748. The only remaining claims here are for genocide and war crimes—norms of international law that do not limit their scope by the corporate or private identity of the perpetrator. Consequently, there is no justification for exempting Rio Tinto from the reach of the ATS in this case.
In determining whether a norm of customary international law excludes corporate actors, I reject the notion that we must find an example of corporate liability in an international forum to satisfy Sosa. See Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013, 1019 (7th Cir.2011) (noting that “one of the principal criticisms” of corporate criminal liability relies on the availability of civil remedies against a corporation in the event of “abhorrent” corporate conduct); cf. Kiobel, 621 F.3d at 132-37 (relying heavily on the lack of international criminal liability to support the holding that corporate liability may not lie under the ATS). Instead, the
Kadic was decided in 1995, before any individual had been held responsible for genocide in an international forum. See Prosecutor v. Akayesu, Trial Chamber Judgment, ICTR-96-4-T (Sept. 2, 1998) (first case holding an individual liable for genocide at an international tribunal). Nonetheless, the court in Kadic had no trouble concluding that private actors may commit genocide under international law and, as a result, be held liable under the ATS for their transgressions. 70 F.3d at 241-42. The Second Circuit looked to the sources of the international prohibition on genocide, as does the majority, to identify whether non-state actors fall within the ambit of the prohibition. See id. The proper inquiry is not whether a corporation has been held liable under international law, it is whether a corporation is bound to abide by the international norm at issue. See Sosa, 542 U.S. at 733 n. 20, 124 S.Ct. 2739 (noting courts must consider “whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued“); see also Flomo, 643 F.3d at 1017 (“There is always a first time for litigation to enforce a norm; there has to be.“).
Although the ATS grants jurisdiction over actions in tort, criminal cases are instructive to the extent they articulate customary international law—but criminal cases are not a limitation on tort liability. See Sosa, 542 U.S. at 734-38, 124 S.Ct. 2739 (concluding the international norm prohibiting arbitrary detention is insufficiently universal, specific, and obligatory to give rise to an ATS suit without reference to international criminal trials or the absence thereof); see also id., 542 U.S. at 762-63, 124 S.Ct. 2739 (Breyer, J. concurring) (noting “consensus as to universal criminal jurisdiction itself suggests that universal tort jurisdiction would be no more threatening” and that “universal criminal jurisdiction necessarily contemplates a significant degree of civil tort recovery as well“). In sum, the jurisprudence of international criminal tribunals is informative as to the content of the norm but the absence of relevant criminal jurisprudence is not particularly instructive in identifying proper defendants in a civil suit. See Flomo, 643 F.3d at 1019-20 (discussing the shortcomings of relying on international criminal law in determining rules of civil liability).
Of note, the majority explains that international law has not consistently precluded corporate criminal liability—at Nuremberg the prosecution apparently believed corporations could be criminally liable for violations of the law of nations but chose instead to focus on natural person defendants as a matter of strategy. See Maj. op. at 760-61; see also Jona-
International criminal trials are but one means of remedying violations of international law—they are not the only means of enforcement nor the only source of customary international law. The judgments of international criminal tribunals provide useful insight as to the scope of customary international law‘s prohibitions of certain conduct—such as genocide and war crimes. See Doe, 654 F.3d at 32 n. 17 (“Crimes and torts frequently overlap. In particular, most crimes that cause definite losses to ascertainable victims are also torts ... [In] a much earlier era of Anglo-American law, criminal and tort proceedings were not distinguished.” (internal quotation marks and citations omitted)). However, because the judgments of international criminal tribunals are rendered in criminal rather than civil trials, they must be used with caution in the ATS context and should not be invoked as a limiting factor regarding the capacity of defendants.
Finally, it bears noting that the incorporation of customary international law into domestic tort suits is not unique to the ATS. Federal courts acting in admiralty jurisdiction have long imposed corporate liability for torts under general maritime law, thus recognizing that federal common law often incorporates norms of international law. See The Amiable Nancy, 16 U.S. 546, 558, 3 Wheat. 546, 4 L.Ed. 456 (1818) (holding, without further delineation, “owners of [a] privateer” liable for tort); The “Scotland“, 105 U.S. 24, 27-30, 26 L.Ed. 1001 (1881) (holding corporate owner of a private ship liable but noting U.S. statute regarding shipowner liability narrowed general maritime law‘s rules of liability in 1851). General maritime law is analogous to modern customary international law in that its core is a small body of international common law that is obligatory on all states and that has been incorporated into federal common law. See Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 206, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996) (referring to general maritime law as “a species of judge-made federal common law“); see also David J. Bederman, Law of the Land, Law of the Sea: The Lost Link Between Customary International Law and the General Maritime Law, 51 Va. J. Int‘l L. 299, 303-22 (2011) (describing connection between customary international law and general maritime law, particularly “[i]n the early legal history of the United States“). This history of corporate liability under general maritime
The language of the ATS, the federal common law of tort liability at the time the statute was enacted, and the scope of the international prohibitions of genocide and war crimes, all point to the conclusion that a corporation may be subject to liability under the international norms prohibiting genocide and war crimes.
III. Sarei Has Not Sufficiently Stated Claims For Genocide And War Crimes.
I agree with the majority‘s analysis of the international law prohibitions on genocide and war crimes, but I cannot join its conclusion that the claims survive dismissal. I would remand to the district court with instructions to dismiss these two claims but to consider whether leave to amend should be granted.
The logic supporting the requirement that an international norm must be “definable” or specific to give rise to an ATS claim is that federal courts must have standards to draw upon in adjudicating such claims. See Sosa, 542 U.S. at 732, 124 S.Ct. 2739, citing favorably In re Estate of Marcos Human Rights Litig., 25 F.3d 1467, 1475 (9th Cir.1994). When a claim relies on a specific and obligatory international norm, and the traditional sources of international law provide us with a clear definition of prohibited conduct, we are obligated to adhere to that definition in measuring the allegations set forth in the complaint. As to whether a claim meets pleading requirements, we look to domestic law, or in this case more specifically to the Supreme Court‘s delineation of pleading standards in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009).
A. Genocide
The complaint includes allegations of killing and serious bodily harm that are sufficient to infer the existence of genocidal acts—what it lacks are allegations that plaintiffs belong to a protected group. The essential components of a genocide claim are: (1) genocidal acts, such as murder; (2) targeting a protected group; (3) with intent to destroy that protected group in whole or in part. See
Authoritative sources have interpreted the definition of a protected group narrowly. The majority notes that the ICJ has held that a “protected group” under the Genocide Convention “must have particular positive characteristics—national, ethnic[ ], racial or religious—and not the lack of them.” Maj. op. at 762; see Bosnia and Herzegovina v. Serbia, 2007 I.C.J. 91, ¶¶ 193-196. Thus “Bosnian Muslims” constitute a protected group under the Convention but a group defined in the negative (“non-Serbs“) does not constitute a protected group. Id. (“[T]he crime requires an intent to destroy a collection of people who have a particular group identity. It is a matter of who those people are, not who they are not.“). Similarly, one Trial Chamber Judgment at the International Criminal Tribunal for the Former Yugoslavia found that “the Genocide Convention does not protect all types of human groups. Its application is confined to national, ethnic[ ], racial or religious groups.” Prosecutor v. Krstic, Case No. IT-98-33-T, Judgment, ¶¶ 554-59 (Aug. 2, 2001) (rejecting the Prosecution‘s attempt to define the protected group as “Bosnian Muslims of Srebrenica” or “Bosnian Muslims of
The majority acknowledges this narrow definition of a protected group under international law, but then goes on to hold that “residents of Bougainville constitute a protected group.” Maj. op. at 762. Here, I must part ways with the majority. This protected group suffers from precisely the shortcoming the ICTY identified with the prosecution‘s effort to define the Bosnian Muslims of Eastern Bosnia as “the protected group“—the group is defined not by nationality or ethnicity but instead by geography. See Krstic, Case No. IT-98-33-T, at ¶¶ 554-59.
Here, the complaint defines individual plaintiffs as “resident[s] of Bougainville” and not as belonging to any specific national, ethnic, racial, or religious group. In its description of the “war crimes class,” plaintiffs’ complaint includes “victims and survivors of the Bougainville conflict.” The paragraph alleging genocide under Count I refers in passing to “natives.” The complaint refers repeatedly to “Bougainvilleans.” In addition, the complaint describes land ownership on a “clan” basis—leaving unstated whether “Bougainvilleans” is an umbrella term including multiple protected groups or a single racial or ethnic group. This ambiguity in the complaint renders the allegations insufficient. In fact, the allegations closely resemble arguments rejected by the ICJ and the ICTY to define a protected group for purposes of genocide based upon what a group is not or the geographic range in which individuals were targeted. The majority is content to conclude the complaint establishes “ethnic and racial traits sufficient to make Bougainvilleans a protected group,” but in my view the complaint‘s failure to specify a protected group to which “Bougainvilleans” belong is a deficiency that warrants dismissing the claim—defining the protected group is the essential first step to making an allegation that defendants acted with the specific intent to destroy that group. See
B. War Crimes
Rio Tinto‘s purported role in the commission of war crimes is difficult to ascertain from the complaint. The complaint is a jumble of facts and conclusory statements that do not allege a coherent theory of Rio Tinto‘s involvement in the alleged war crimes. The complaint fails to tell the basic story of who, what, where and when with respect to the war crimes claims, and Rio Tinto‘s role is amorphous at best.7 The majority fails to take heed of the Supreme Court‘s recent reminder that “formulaic recitations of the elements” of a claim and “naked assertions devoid of further factual enhancement” are insufficient to survive a motion to dismiss. Iqbal, 129 S.Ct. at 1949, 1951 (internal quotation
The majority holds that the international norm prohibiting war crimes includes within its proscription aiding and abetting the commission of war crimes,8 just as the international norm includes corporations within its ambit. Maj. op. at 761-62. To the extent the international norm requires purposive action in furtherance of a war crime to establish aiding and abetting liability, the complaint fails to allege the necessary purpose to survive the motion to dismiss.9 I would therefore reverse and remand to the district court for consideration of whether leave to amend is proper.
The complaint adequately alleges that war crimes were committed in Bougainville, ostensibly by the PNG government. However, the very language of the complaint underscores its frailties. Rio Tinto‘s role in the war crimes and the timing of those crimes (particularly as related to Rio Tinto‘s alleged actions supplying equipment to the PNG forces) remains untethered to purposive action. At best the complaint alleges facts giving rise to an inference that Rio Tinto had knowledge of war crimes committed by PNG forces, but
A few examples are illustrative of the difficulties with the complaint. The allegations support an inference of mere knowledge on Rio Tinto‘s part that Bougainville residents might be injured or killed as a result of military action taken by PNG in the context of an ongoing conflict and related to the reopening of Rio Tinto‘s mining operations on Bougainville. Such an allegation is not surprising, nor particularly illuminating, in light of the ongoing conflict between the PNG and the militants, who were also residents of the island. Missing is the link between Rio Tinto and the PNG‘s alleged war crimes—the murder of civilians. Intent to harm, particularly in the context of an ongoing conflict, is not equivalent to intent to further murder in violation of the Geneva Conventions. See Iqbal, 129 S.Ct. at 1948 (in the context of discrimination, purposeful action “requires more than intent as volition or intent as awareness of consequences.” (internal quotation marks and citation omitted)).
Another shortcoming relates to the allegations of “assistance” to the PNG. “[A]ssistance to the abuses of a government [which] was merely incidental to a proper business purpose” does not give rise to ATS liability for aiding and abetting a violation of the law of nations. Kiobel v. Royal Dutch Petroleum Co., 642 F.3d 268, 275-76 (2d Cir.2011) (order denying petition for rehearing en banc) (Leval, J., dissenting from denial of rehearing en banc). In my view, this case is akin to the unsuccessful ATS suit outlined in Talisman. See 582 F.3d at 262. There, the Second Circuit held that Talisman did not aid and abet war crimes even if it provided substantial assistance in the form of upgraded airstrips or roads for military use, because there was no evidence that Talisman intended to “aid atrocities” and particularly because the company apparently had a “legitimate need to rely on the military for defense.” Id. The situation here, at least as currently pled in the complaint, is not dissimilar. It is not alleged that Rio Tinto intended for the war crime of murder to be committed. See Prosecutor v. Tadic, Case No. IT-94-1-A, Judgment (July 15, 1999), ¶ 229(iv) (distinguishing between the knowledge mens rea which requires only “knowledge that the acts performed by the aider and abettor assist the commission of a specific crime by the principal,” from the mens rea of purpose, which requires “intent to perpetrate the crime“); see also Twombly, 550 U.S. at 556, 127 S.Ct. 1955 (“parallel conduct” is insufficient to establish unlawful agreement in the context of conspiracy).
The pleading inadequacies are not inconsequential as they go to the heart of the international norm violations. I therefore respectfully dissent from Part IV(B)(4) of the majority opinion.
IV. Conclusion
This appeal once again takes us into uncharted ATS waters. The alleged actions include horrific human rights violations, and I do not hesitate to apply the jus cogens norms prohibiting genocide and war crimes to corporations given the truly universal nature of those prohibitions.
BEA, Circuit Judge, concurring in part and dissenting in part, with whom KLEINFELD and CALLAHAN, Circuit Judges, join, and with whom IKUTA, Circuit Judge, joins as to all but Part III:
The last time this case was before us, the en banc court remanded to the district court to “determine in the first instance whether to impose an exhaustion requirement” on plaintiffs’ claims under the Alien Tort Statute (“ATS“).1 Sarei v. Rio Tinto PLC, 550 F.3d 822, 832 (9th Cir.2008) (“Rio Tinto III“). In determining whether such an exhaustion analysis was required, our Rio Tinto III plurality opinion (“Plurality opinion“) instructed the district court first to consider and balance two factors: (1) the strength of the nexus, if any, between the United States and the acts and omissions alleged in the complaint—the less nexus, the more reason for exhaustion, and (2) the gravity of the violations alleged, namely whether the claims implicated “matters of universal concern“—the more grave the violations, the less reason for exhaustion. Id. at 831.
Then, if this two-factor balancing test weighed in favor of imposing such an exhaustion requirement, the plurality opinion instructed the district court it should then perform the traditional two-part exhaustion analysis. That analysis would require the district court to consider: (1) whether the foreign plaintiffs had local remedies where the alleged torts occurred and had exhausted them, and, if not, (2) whether any exhaustion requirement is excused because local remedies are ineffective, unobtainable, unduly prolonged, inadequate, or otherwise futile to pursue. Were the district court to find the balance of “nexus” versus “matters of universal concern” weighed against such an exhaustion requirement for a given claim, then that claim could proceed without any consideration to exhaustion of local remedies.
In our remand order, we specifically instructed the district court to consider and weigh both factors in the prudential exhaustion framework—nexus and universal concern—regardless the strength or weakness of either factor. Even if the district court were to find that plaintiffs’ claims implicated matters of universal concern, “simply because universal jurisdiction might be available, does not mean that we should exercise it.” Id. Instead, the plurality opinion stated that “in ATS cases where the United States ‘nexus’ is weak, courts should carefully consider the question of exhaustion, particularly but not exclusively with respect to claims that do not involve matters of ‘universal concern.’ ” Id. (emphasis added). That meant that no matter how clear it was that a claim did involve matters of “universal concern,” the district court should still balance against that ground for dispensing with exhaustion an evaluation of what nexus, if any, existed between the violation claimed and our country.
Nonetheless, the district court—ostensibly purporting to apply the plurality opinion‘s framework—summarily concluded
Then, without discussion of any facts which may have proved the presence or extent of a nexus—“weak,” “strong,” or otherwise—between such allegations of “heinous” acts and the U.S., the district court simply found that the “heinous” acts outweighed the “weak nexus” to the U.S. Id. at 1031. Here, the district court erred by skipping an essential step: it should have determined whether there was any nexus at all between the acts alleged and the United States. As discussed below, that should have been determinative for imposing the exhaustion requirement, resulting in dismissal of the complaint.
And now we have an additional problem with the district court‘s action—a problem which ineluctably requires reversal and remand: this court‘s present majority opinion knocks out two of the four allegations which the district court found all stated “matters of universal concern.”2 Do the remaining two allegations (war crimes and genocide) outweigh the considerations of lack of—or even weakness of—nexus? It is not for us to say, under the mandate of the earlier plurality opinion. It is for the district court to determine. Even if we find no error in the district court‘s original determination that consideration of the allegations outweighed the consideration of nexus, we now have a different balance to be weighed: fewer valid allegations than before, but the same nexus, or lack thereof. A new balance must be struck, and it must be struck by the district court.
I. Failure properly to consider “nexus”
The district court defined its terms so as to predetermine the outcome of the prudential exhaustion requirement it was ordered to carry out. The district court defined the “spectrum” on which to measure the nexus between the claims and the United States as running from “weakest” to “strongest,” instead of running from “no nexus” to “strong nexus.” It assumed there was at least some nexus.
But there was no such nexus. This case involves a so-called “Foreign-cubed suit”3: a foreign plaintiff suing a foreign defendant for alleged torts which occurred entirely on foreign soil. The only connection the plaintiffs can identify between their causes of action and the United States is that Rio Tinto, a British corporation, does business in the U.S. These business activities may provide a sufficient basis for the
Of course, by self-defining the low range of the nexus spectrum as “weak nexus,” the district court was able to mischaracterize the nexus in this case as “weak” instead of inexistent. To support this implausible factual finding, the district court relied on the plurality opinion‘s unexplained statement that, based on appearances—not examined evidence—plaintiffs’ allegations “lack[ed] a significant United States ‘nexus.’ ” Rio Tinto III, 550 F.3d at 831. But a district court‘s unexplained reliance on tentative, unreasoned appellate dicta cannot take the place of reasoned analysis based on proof, particularly where every fact and inference to be drawn from the record suggests that there is no nexus at all between the plaintiffs’ claims and the United States. See United States v. Hinkson, 585 F.3d 1247, 1251 (9th Cir.2009) (en banc), cert. denied, — U.S. —, 131 S.Ct. 2096, 179 L.Ed.2d 890 (2011).
From that factual error, let us go to the legal error. Having implausibly found that the United States has a “weak” nexus to the suit when in fact no such nexus exists, the district court misapplied the balancing test set forth in the remand order. The plurality opinion stated that “where the United States “nexus” is weak, courts should carefully consider the question of exhaustion, particularly—but not exclusively—with respect to claims that do not involve matters of ‘universal concern.’ ” Rio Tinto III, 550 F.3d at 831 (emphasis added). In other words, the district court should be especially solicitous of imposing an exhaustion requirement when the nexus is weak and the claims do not implicate matters of universal concern. But it should weigh the nexus issue even where the matters are of “universal concern.”
The district court‘s opinion provides no basis for us to review that any such balancing took place. In fact, in her 31-page opinion, the district court dedicated only one sentence to her purported balancing of the nexus and universal concern factors. This one sentence consists of a conclusory assertion that the “weak nexus” between the plaintiffs’ claims and the United States “is outweighed by the ‘heinous’ nature of the allegations on which the claims are based.” Rio Tinto IV, 650 F.Supp.2d at 1031.
Nor did the district court try to reconcile its new rule exempting allegations of “heinous” conduct of universal concern from the exhaustion requirement with the remand order‘s statement that mere universal jurisdiction for a claim is not itself a sufficient condition for exempting exhaustion. See Rio Tinto III, 550 F.3d at 831. Perhaps worst of all, the only authority the district court cited for her conclusion that
Under the abuse of discretion standard, we must defer to reasonable applications of multi-factor balancing tests. But where the district court fails to perform the prescribed balancing test, detail how it weighed the relevant factors, or otherwise explain its conclusion, such deference is inapplicable. See Solis v. Cnty. of Los Angeles, 514 F.3d 946, 958 (9th Cir. 2008) (reversing because the district court failed to consider a relevant factor or provide an adequate explanation for its decision, rendering meaningful appellate review impossible). To uphold a district court‘s ruling which directly flouts our instructions is to encourage instability in our law.
II. Majority opinion requires a remand
As noted, the majority opinion determines that allegations of “crimes against humanity” (per blockade) and of “racial discrimination” do not constitute claims sufficiently specific, universal, and obligatory so as to violate jus cogens (customary international law). Therefore, such allegations do not implicate “matters of universal concern.”
Given this result, the district court‘s failure to articulate the ordered balancing between “nexus” and “matters of universal concern” makes now mandatory a remand for a new determination of prudential exhaustion. We cannot tell from the district court‘s opinion if any of the allegations of the complaint found valid by the majority opinion were, by themselves or in conjunction, sufficiently “heinous” as to outweigh the lack of nexus, or whether it was the other allegations in some combination, or in total which outweighed the lack of nexus. Perhaps now, with the allegations of “crimes against humanity” and “racial discrimination” knocked out, the remaining allegations will not outweigh the lack of nexus. Either way, a remand is in order.
III. Mandatory exhaustion required
Because I find that our mandate to exercise prudential exhaustion was not carried out, I do not want to be understood to have abandoned the view that exhaustion of local remedies is mandatorily required by “the law of nations.” It is not solely a matter of judicial prudence to require such exhaustion. The incorporation of substantive international law (the law of nations) into the ATS necessarily incorporates not just the traditional causes of action recognized by the law of nations, but also the traditional limitations placed on those rights by customary international law. One of those well-established limitations is exhaustion of local remedies. Rio Tinto III, 550 F.3d at 833 (Bea, J., concurring); see also Jose E. Alvarez, 14th Annual Herbert Rubin and Justice Rose Luttan Rubin International Law Symposium: A Bit on Custom, 42 N.Y.U. J. Int‘l L. & Pol. 17, 72 (2009) (recognizing exhaustion of local remedies as one of the “fundamental rules of customary international law“).
Mandatory exhaustion analysis is not simply a historical remnant or an administrative or procedural rule. As recognized by legal scholars and our courts, the exhaustion requirement plays a critical role in American foreign relations by preventing our judiciary from interjecting itself
IV. Conclusion
I believe the district court erred in applying the rules of prudential exhaustion as ordered by us in Rio Tinto III‘s plurality opinion; but even if I am wrong on that, our majority opinion now requires a remand and a new application of prudential exhaustion. I also believe plaintiffs’ claims are barred by the mandatory exhaustion provisions of the law of nations. For both these reasons, I respectfully dissent.
KLEINFELD, Circuit Judge, dissenting, with whom BEA and IKUTA, Circuit Judges, join:
I respectfully dissent.
“[T]here must be some rule of law to guide [a] court in the exercise of its jurisdiction.”1 The complaint in this case seeks damages and an injunction against Rio Tinto, a British-Australian corporation, for wrongs against people in Bougainville, Papua New Guinea.2 Now that our court has adopted universal jurisdiction to grant tort damages for violations by foreigners against foreigners in foreign lands of “the law of nations,” in a plethora of opinions that cannot agree on what the “law of nations” prohibits, we on the Ninth Circuit now exercise jurisdiction over all the earth, on whatever matters we decide
We have no such jurisdiction. The majority claims it under a 1789 statute passed by the First Congress that conferred tort jurisdiction on the new federal courts for torts in violation of the “law of nations.” That statute was intended to enable our courts to address wrongs done in the United States to foreigners and wrongs done outside any foreign state‘s territory. Here is the statute:
The district courts shall have original jurisdiction of 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.3
The statute does not say “in the United States or in any foreign state.” The majority reads it as though it does.
The majority errs in claiming jurisdiction because:
(1) the statute does not say that it applies within the territory of other states and its historical context shows that its purpose was to afford a remedy for wrongs committed within the United States;
(2) the reference to the “law of nations” does not imply applicability within other countries, and such application would itself violate the law of nations;
(3) the inference of such application from the phrase “the law of nations” is prohibited by Supreme Court holdings that statutes do not apply extraterritorially unless they say so or clearly so imply; and
(4) jurisdiction over piracy on the high seas does not imply jurisdiction over wrongs committed within the territory of a foreign state.
The consequences of the majority‘s claim are a new imperialism, entitling our court, and not the peoples of other countries, to make the law governing persons within those countries. Our court now asserts entitlement to make law for all the peoples of the entire planet.
The Alien Tort Statute does not so empower us. It was promulgated to enable foreigners to sue for violations in America of a narrow set of norms, where failure to vindicate the wrongs might embroil our weak, new nation in diplomatic or military disputes. The wrongs were to ambassadorial officials in the United States, and piracy, sometimes by Americans. There are three classes of territory, not two, for purposes of law of nations analysis: territory within the United States; territory outside the United States and outside any other state; and territory outside the United States and within another state. Both the last two are extraterritorial, but the law of nations differs as between them. Piracy occurs within the second class. Jurisdiction has always extended extraterritorially to the high seas, not because piracy was more heinous than other crimes, but because imposition of any state‘s law could offend no other state‘s governance of its own territory.
Advocates of universal jurisdiction see themselves as demonstrating enlightened open-mindedness to international law norms; instead, universal jurisdiction violates the most long-established, central and fundamental principle of the law of nations: “equality of sovereignty,” as it is called, meaning each sovereign‘s authority over its subjects in its own territory equals
Our case is by Papua New Guineans, against a British-Australian company, for wrongs allegedly committed in Bougainville in connection with the civil war between Papua New Guinea and the people of Bougainville. Justice Stevens would describe this type of lawsuit, where foreign plaintiffs sue foreign defendants for wrongs committed in foreign countries, as a “foreign-cubed” action. The complaint seeks class action certification, equitable relief, and compensatory and punitive damages against Rio Tinto. Every single wrong claimed by the plaintiffs is alleged to have occurred in Bougainville, either by Rio Tinto or by the government of Papua New Guinea acting with the encouragement of Rio Tinto. The injunction sought would be an order by an American district judge compelling environmental and other remedial action by Rio Tinto in Bougainville. No relationship is alleged between any of the wrongs claimed, or the remedies sought, and any American citizen or the United States.
The Governments of the United Kingdom of Great Britain and Northern Ireland, and of the Commonwealth of Australia, argue as amici that “it is a bedrock principle of international law that each sovereign nation is equally entitled to prescribe laws and to adjudicate claims regarding those persons within its sovereign territory.”4 They are correct. They made substantially the same argument as amici before the Supreme Court in Morrison v. National Australia Bank.5 The Supreme Court accepted it.6 Scholarship in other countries has supported this British and Australian view, and criticized overweening American claims.7
The First Congress passed the Alien Tort Statute to deal with domestic violations of the law of nations that created risks for our foreign relations, and perhaps our new nation‘s continued existence. The problem was not that some far-away wrongdoer might violate the law of nations in some other country, but that violations had occurred and would occur within the United States that could, if unremedied, cause diplomatic or military hostility by other nations. We had just signed a peace treaty with Great Britain after a War of Independence we barely won. We could ill afford diplomatic problems with the British, who bordered us on the north, the Spanish, who then bordered us on the south and west,8 or the French, whose support had been essential to our independence.9
Given our precariousness, the First Congress was concerned that American, not foreign, violations of the law of nations might “afford just causes of war,”10 a war we likely could not win. The law of nations established that the state in which it was violated must afford a remedy, or else the victim state was entitled to take “reprisal” for “denial of justice” by the state in which the wrong occurred. Thus, if, say, a French consul‘s right was violated in Philadelphia, and American courts afforded no remedy, then France was entitled to reprisal, which could even include war. This problem is not confined to the eighteenth century. For example, in the Don Pacifico affair of 1850, a mob in Athens wrecked a British subject‘s house, and when his claim for compensation from the Greek government was resisted, the British fleet was ordered to Greece to compel monetary settlement.11 The Iranian government‘s refusal to remedy the hostage crisis of 1979 to 1981 is a recent example.
The Federalist Papers justified creation of federal courts in part because “denial of justice” for violation of the law of nations would justify “reprisal.” Federalist 80 by Hamilton explained that a federal judiciary needed jurisdiction over matters “which involve the PEACE” because “[t]he union will undoubtedly be answerable to foreign powers for the conduct of its members. And the responsibility for an injury ought ever to be accompanied with the faculty of preventing it” since “the denial of justice” is “classed among the just causes of war.”12
Two specific violations of the law of nations within the United States compelled immediate promulgation of the Alien Tort
This problem arose again in 1787, shortly after the Constitutional Convention in Philadelphia. A New York City constable entered a Dutch diplomat‘s residence with a warrant for one of the diplomat‘s domestic servants. The Dutch government protested the violation of its sovereignty.17 This violation of the law of nations in New York complicated our relations with the Netherlands.18
These violations of the law of nations occurred on American soil. That is why they required an American response to head off reprisals.19 As Justice Stevens explained in the oral argument in Sosa, the “only [relevant law of nations violations the First Congress] knew about had taken place in the United States” and “[t]hey certainly would not have been concerned about an assault on the say, the English ambassador in Paris by a Frenchman.”20
Because these violations of the law of nations took place on American soil, American sovereignty allowed, and the law of nations required, the United States to provide an adequate means of redress.21 The
The Alien Tort Statute enables alien plaintiffs to file civil actions in federal district courts, thereby providing for federal jurisdiction regardless of whether state courts would entertain the claims. It does not say that such torts give rise to federal jurisdiction despite the absence of any American nexus—that is, when the torts are committed in other countries by and against aliens. There is no reason why it would say this, since violations of the law of nations abroad and between foreigners would have given rise to no risk of “reprisals” against the United States.
Murray v. Schooner Charming Betsy held in 1804 that a statute must be construed if possible to comply with, rather than violate, the law of nations.25 “An act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.”26 So, in that case, a federal law prohibiting commerce with France or its possessions was held not to apply to a Danish-owned vessel trading with and in a French possession, despite its literal applicability.27 Because Charming Betsy, like our case, was “foreign-cubed,” the rule of construction made the statute inapplicable.28
The Charming Betsy canon barred jurisdiction based on the most fundamental principle of the law of nations: “equality of sovereignty.”29 Equality of sovereignty requires that every sovereign is to be treated as the equal of every other in its entitlement to govern persons within its own territory.30 “Under international law, a state has . . . sovereignty over its territory,”31 which “implies a state‘s lawful control over its territory generally to the exclusion of other states, authority to govern in that territory, and authority to apply law there.”32 It means that Papua New Guinea, not the United States, is entitled to govern conduct by non-Americans in Papua New Guinea, just as the United States may govern in the fifty U.S. states.33 What little authority there is for
This bedrock principle stems from the settlement of the Thirty Years’ War by the Peace of Westphalia in 1648. The purpose of the principle is to reduce pretexts for wars.35 The principle of equal sovereignty compels the corollary that one sovereign cannot exercise authority over conduct within another sovereign‘s territory.36 As Chief Justice Marshall wrote in The Antelope: “No principle of general law is more universally acknowledged, than the perfect equality of nations. . . . It results from this equality, that no one can rightfully impose a rule on another. Each legislates for itself, but its legislation can operate on
Sosa v. Alvarez-Machain reaffirms the vitality of this principle by confirming the continuing authority of Vattel‘s The Law of Nations as an authoritative source for determining the intent of the Alien Tort Statute.39 Vattel is an authority because the First Congress relied on him.40 Vattel states that “sovereignty carries with it a right . . . over all property, public, common, and private; it is the right of sovereign control over all parts of the territory belonging to the Nation. . . . Whatever takes place there is subject to his authority.”41 The point emphasized repeatedly by jurists and scholars is that, in the absence of a clear congressional declaration to the contrary, federal courts should not “pretend[] to be the custos morum of the whole world.”42
Recently, some advocacy groups have found receptiveness in Europe toward universal jurisdiction over unpopular foreign officials accused of war crimes and other offenses against the law of nations.43 But even such aggressive claims as the recently-stayed case in Spain against former U.S. executive officials for alleged war crimes in Guantanamo and Iraq are criminal prosecutions, not private tort cases.44 These criminal cases depend on decisions by government prosecutors and their supervisors, who may, unlike private plaintiffs, be subject to their governments’ judgments about diplomatic consequences. And despite these aggressive assertions of judicial power, there is no consensus that universal jurisdiction exists for private civil claims.45 The majority‘s assertion of universal jurisdiction over private claims, unlike executive branch decisions, can embroil our country in diplomatic and military disputes entirely unchecked by the elected branches of our government.
In the United States, the source of this new judicial aggressiveness is our sister circuit‘s decision in Filartiga v. Pena-Irala.46 Filartiga held that a Paraguayan permanent resident alien living in the United States could sue another Paraguayan also living in the United States for torture in Paraguay. The language in Filartiga most supportive of the majority‘s decision in the case at bar is this assertion of a broad principle: “It is not extraordinary for a court to adjudicate a tort claim arising outside of its territorial jurisdiction.”47 Filartiga, unlike our majority, immediately qualifies this broad principle in the next sentence: “A state or nation has a legitimate interest in the orderly resolution of disputes among those within its borders . . . ,”48 as plaintiff and defendant were in that case. Filartiga further qualifies its decision by giving effect to Paraguayan law.
Filartiga, though, does invite the broader reading our majority gives it, by quot-
Judges of the International Court of Justice,57 British law lords, and jurists around the world have lamented the aggressive claims to rule the world by courts claiming universal jurisdiction. “It is not for a national court to ‘develop’ international law by unilaterally adopting a version of that law which, however desirable, forward-looking and reflective of values it may be, is simply not accepted by other states.”58 Though Filartiga and its recent companions claim to embrace international law, they defy its most fundamental principle, equality of sovereignty. Imposition of putative international norms in foreign-
Congress has never given us “a clear mandate” for the wrongs alleged in the complaint before us.60 Sosa did not open the door to our unconsented entry. The Court suggested that there may be some international norms that violate the law of nations in addition to piracy, safe conducts, and assaults against ambassadors, but warned courts to be cautious in creating new claims.61 Filartiga argues for jurisdiction over torture in a foreign state partly on the grounds that torture violates Paraguayan law, and mistakenly analogizes torturers to pirates.62 But the plaintiffs here do not plead that Rio Tinto violated Papua New Guinean law. We have absolutely no indication in the record or in the majority decision of how the
The Second Circuit now acknowledges that “the class of crimes subject to universal jurisdiction traditionally included only piracy.”63 The only wrong the First Congress could have possibly contemplated as providing universal jurisdiction would have been piracy.64 But imaginative speculation about how legislators in 1789 may have felt about piracy cannot expand the Alien Tort Statute‘s reach to entirely foreign disputes that bear no relation whatsoever to piracy.65 Twenty-first-century preferences regarding universal jurisdiction and war crimes do not shed light on the congressional intent underlying an
III. Absence of Affirmative Intent Clearly Expressed.
Sosa adds another reason why courts must be especially restrained in expanding the meaning of the “law of nations“: the political nature of the concerns raised. Sosa holds that there is a “high bar to new private causes of action for violating international law, for the potential implications for the foreign relations of the United States of recognizing such causes should make courts particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs.”67 Therefore, courts are required to be especially careful to not disregard the principle of equal sovereignty when interpreting statutes.68
Because of the delicacy of potential disruption of foreign relations, the rule is that a statute may be given extraterritorial effect only if Congress provides “clear expression” of an “affirmative intent.” “For us to run interference in such a delicate field of international relations there must be present the affirmative intention of the Congress clearly expressed. It alone has the facilities necessary to make fairly such an important policy decision where the possibilities of international discord are so evident. . . .”69
Of course, as with most principles, there are exceptions. The new heights of inhumanity achieved by Germany from 1933 to 1945 compelled a new look at the Westphalian principle.70 The law of nations, as currently understood, does indeed allow interference with another nation‘s sovereignty to prevent certain wrongs, such as genocide and slavery.71 Even for genocide and slavery, the decision whether to afford remedies rests with the executive and legislative branches. Our government may, consistently with the law of nations, remedy such violations, but that does not imply equal authority in the courts, in the absence of clear expression by the political branches to confer that authority. Sometimes the political organs of government make political decisions to do nothing, as with genocide in Rwanda and slavery in the Sudan in recent years. The bedrock principle of equality of sovereignty is not an absolute prohibition on government vio-
That the law of nations may be violated is necessary but not sufficient for jurisdiction. Even assuming that the presumption against extraterritoriality is rebuttable and that the complaint sufficiently pleads violations of the law of nations by Rio Tinto, we still lack the clear expression of an affirmative intent by Congress sufficient to enable the judiciary to act in violation of the principle of equal sovereignty. “Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.”73 Consequently, even if the law of nations, the General Assembly of the United Nations, and the United Nations Security Council were to authorize “all necessary measures”74 against Papua New Guinea and Rio Tinto for depredations in Bougainville (which they have not), a federal court would still need a congressional grant of jurisdiction under Article III to join the crusade. That grant of jurisdiction is lacking in this case, because the Alien Tort Statute does not clearly express an intent that it should be applied within the territory of another sovereign nation where there is no American connection.
Morrison reaffirms the long-standing canon of construction against implied extraterritoriality: “When a statute gives no clear indication of an extraterritorial application, it has none.”75 Since the Alien Tort Statute gives no such “clear indication,” it has no application to “foreign-cubed” cases such as this one. The statute does not say or imply “wherever such violation may occur.” The authority of American courts does not generally extend to all heinous wrongs committed by anyone, against anyone, anywhere in the world. That is so even if the wrongs are so heinous that no civilized person could think them tolerable, and even if the wrongs violated the law of nations and could justify a legislative and executive decision to remedy them.
Ambiguous statutory language is not enough to get around Morrison‘s “bright
We can see from other statutes what “clear indication[s]” of extraterritorial application look like. The Torture Victim Protection Act of 1991 gives the district courts jurisdiction over aliens’ claims for torture and extrajudicial killing. The clearly expressed intent that it apply extraterritorially is its requirement of exhaustion of remedies “in the place in which the conduct giving rise to the claim occurred.”81 This is “a clear mandate . . . providing authority that ‘establish[es] an unambiguous and modern basis for’ federal claims of torture and extrajudicial killing.”82 Sosa goes out of its way to reject any general implication that “other norms that already exist or may ripen in the future into rules of customary international law” provide a basis for jurisdiction over lawsuits: “Congress as a body has done nothing to promote such suits.”83
Likewise, the Foreign Corrupt Practices Act prohibits foreign companies listed on an American stock exchange from “corruptly do[ing] any act outside the United States” in furtherance of foreign bribery.84 The language “outside the United States” plainly and expressly provides for extraterritorial application. No such language suggesting extraterritorial application was included in the Alien Tort Statute. Congress has from time to time amended the Alien Tort Statute, but has refrained from adding any expression of an intent that it apply extraterritoriality.85
The advisory opinion by Attorney General William Bradford cited by Judge McKeown does not support a contrary view. Attorney General Bradford‘s opinion related to the Jay Treaty, so it concerned the Alien Tort Statute‘s treaty provision, not, as in this case, the “law of nations.” And it spoke to Americans’ actions abroad, not foreign-cubed cases such as this. The treaty required punishment of American citizens acting on commission from enemies of Great Britain (France) against British subjects.88 Had federal courts denied alien plaintiffs a venue for the actions committed in violation of the law of nations by Americans abroad, the denial would have resulted in “denial of justice” justifying reprisals, which was what the First Congress intended to avoid.89 Attorney General Bradford‘s opinion does not support federal jurisdiction under the Alien Tort Statute for foreign-cubed cases.90
To give a “clear indication” of extraterritorial application, the statute would have to address where the tort was committed. It merely addresses what may constitute the tort, and gives no indication, let alone a clear expression of one, that the federal courts were to wield their swords in foreign countries for wrongs having nothing to do with our new country. Morrison implicitly rejects the Second Circuit‘s “disregard of the presumption against extraterritoriality” and the misguided belief that it is “left to the court[s] to ‘discern’ whether Congress would have wanted the statute to apply” if a statute “is silent as to . . . extraterritorial application.”91
IV. Piracy.
I have assumed for purposes of discussion that the complaint alleges violations of the law of nations, but do not mean to suggest that it really does. The Court held in Sosa v. Alvarez-Machain that “federal courts should not recognize private claims under federal common law [in the context of the Alien Tort Statute] for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when [the Alien Tort
One of the three violations of the law of nations laid down by Blackstone, as noted in Sosa, was piracy.98 This is an extraterritorial wrong cognizable under the Alien Tort Statute. Sosa holds that Congress meant to include piracy in the statute because piracy gave rise to actionable private claims for violation of the law of nations in the eighteenth century.99 That does not support an inference that other heinous conduct was included.
There are two kinds of extraterritoriality: conduct outside the territory of any state, and conduct outside our territory but within the territory of another state. Piracy, by definition, falls within the first, not the second, kind of extraterritoriality. It occurs outside the territory of any state, so any state can grant a remedy without impinging on the sovereignty of another state. Though some wrongs are as abhorrent as piracy, and some are considerably worse, that does not imply that wrongs as bad as or worse than piracy may be remedied when they occur in a foreign state. “[U]niversal jurisdiction is accepted in cases of piracy because piracy is carried out on the high seas, outside all State territory” so it is traditionally the “one case of universal jurisdiction.”100 The extraterritoriality of the wrong is why universal jurisdiction has always applied to piracy,101 and why it is a sui generis exception to the presumption against extraterritoriality.102
The First Congress defined piracy in 1790, a year after promulgating the Alien Tort Statute, as “murder or robbery, or any other offence, which, if committed within the body of a county, would, by the laws of the United States, be punishable with death” as long as it was committed “upon the high seas, or in any river, haven, basin or bay, out of the jurisdiction of any particular state.”108 The phrase “out of the jurisdiction of any state” is the critical element of the crime for purposes of extraterritorial applicability. The current version of this statute likewise criminalizes “piracy, as defined by the law of nations” when committed “on the high seas.”109
That the location, and not the heinousness, is what justifies universal jurisdiction should be obvious even without knowledge of the traditional understanding that “piracy was listed as the only universally cognizable offense.”110 If a gang of Somalis takes control of a ship on the high seas, holding the ship, its crew, and its passengers for ransom, forcibly taking the passengers’ property and killing its captain, they have committed piracy and federal courts in the United States may exercise criminal and civil jurisdiction.111 Now suppose the very same Somali gang assembles in Rotterdam, takes over a Dutch factory, kills the factory manager, and holds the Dutch factory workers for ransom and takes their property. The law of nations provides for universal jurisdiction over the gang when they act on the high seas, but
V. Injudicious Imperialism.
Our decision makes the Ninth Circuit the best place in the world to bring class actions against deep-pocket private defendants to recover compensatory and punitive damages and attorneys’ fees for the evils so prevalent all over the world. This claim of supervisory authority over the entire planet is unwise as well as legally incorrect.
First, as has already been addressed, our decision has no support in the law of nations. On the contrary, our decision undermines it. Even the Second Circuit would dismiss this case.114 When the District of Columbia Circuit faced some of the same questions for foreign-cubed human rights claims in Tel-Oren v. Libyan Arab Republic115 and Ali Shafi v. Palestinian Authority,116 all three judges on each panel agreed that the suit was properly dismissed for lack of jurisdiction, albeit on differing grounds. The fractured opinions when circuit courts, ours and others, address extraterritorial jurisdiction under the Alien Tort Statute are themselves strong evidence of the absence of any established body of useful precedent.117 No other circuit has opened the door so wide as we now do for private tort actions for wrongs by foreigners, to foreigners, in foreign lands. Our course is contrary to the “vigilant doorkeeping” that Sosa v. Alvarez-Machain requires.118 We may use forum non conveniens in the future to limit the harm,119 but we have no authority to exercise jurisdiction at all.
Second, the majority confuses what the United States may properly do under customary international law with what the First Congress gave American courts jurisdiction to do. The United States may, in accord with contemporary views of international law, act in other states’ sovereign territory against many human rights violations, such as genocide.120 Congress may have authority to confer universal jurisdiction over some foreign-cubed human-rights violations, and has done so with respect to torture.121 It is careless error, though, to infer that anything the elected branches may do, a court has jurisdiction to do. Whether Congress may, consistently with the law of nations, grant universal jurisdiction to a federal court is a different question from whether it has done so. The majority misses that distinction.122 In foreign affairs, the error is not only careless but dangerous.
The Constitution gives the power to “define and punish” violations of the law of nations, and the power to define the jurisdiction of federal courts, to Congress.123 That the United States government may properly act to stop genocide in a foreign country does not imply that a federal district court may enjoin foreign genocide and then send in the marshals to enforce the injunction by force, or award damages. Yet the complaint asks us to issue an injunction regulating environmental remediation in Papua New Guinea, and to award damages for claimed human-rights
Exercise of jurisdiction over alleged wrongs committed by foreigners against foreigners in a foreign country dangerously interferes with decisions properly made only by the political branches of our government. Such claims are properly classed as raising nonjusticiable political questions. United States v. Palmer holds that questions regarding the rights of a part of a foreign state seeking its independence are “delicate and difficult” and “such questions are generally rather political than legal in their character.”124 In the case before us, the claims arise out of a civil war in which Bougainville sought to secede from Papua New Guinea. Palmer held that such questions as are before us belong more properly to those “who can place the nation in such a position with respect to foreign powers as to their own judgment shall appear wise; to whom are entrusted all its foreign relations; than to a tribunal whose power as well as duty is confined to the application of the rule which the legislature may prescribe for it.”125
The political branches may choose to take no action against terrible evils to preserve essential alliances, as they did with respect to the Soviet Union during World War II; to avoid entanglements
Third, judicial decisions on entirely foreign matters are likely to be mistaken because of the inadequate reliability of factual determinations. American courts decide cases by applying general legal principles to highly particularized historical facts.126 A just decision requires a reasonably high degree of accuracy in the factual determination. Papua New Guineans speak hundreds of languages, which few federal judges or certified translators in America are likely to know. Conduct there occurs in what is for us an extremely exotic context. Things that every Papua New Guinean knows are unknown to us, and we are likely to be excessively dependent on what one or a few anthropologists tell us. Nor are we likely to understand the Papua New Guinean factual, historical, and legal context, a necessity if we are to judge the right and wrong of conduct that occurred there. The incapacity of American courts to ascertain facts about what foreigners did to foreigners in a foreign land, combined with the amorphousness of the general principles of law to be applied, can only lead to unreliable, unpredictable, and unjust results.
And suppose the district court were to award judgment for a huge sum from Rio Tinto for distribution to the several Papua New Guinean classes designated in the complaint. After we assign part of it to counsel as attorneys fees, how shall the district court effectively and justly supervise distribution to the proper Papua New Guineans in proper amounts? Justice requires accuracy and fairness in dividing up the winnings, not just assigning the blame and imposing the losses. These foreign-cubed cases may generate publicity and settlements,127 but the logistics of an actual trial and management of remedies in a federal district court are impracticable and not subject to just application.
Fourth, once we release the genie of universal jurisdiction from the bottle, we cannot control for whom the genie works its magic. Other countries with different values are likely to use universal jurisdiction against us. There could be a class action, perhaps in Papua New Guinea, brought by a Cherokee against descendants of those who obtained Cherokee land when President Jackson‘s administration forced their ancestors to leave their homes for the West. A foreign court could entertain a class action on behalf of African-Americans against American banks whose corporate ancestors profited from interest on loans for the purchase of American slaves. The law of nations provides no statute of limitations for universal offenses, so these class actions might well be cognizable in foreign courts.128 Why
Universal jurisdiction has already been asserted, by Iran, for blasphemy. Here is the 1989 edict by the Ayatollah of Iran against Salman Rushdie:
I inform all zealous Muslims of the world that the author of the book entitled The Satanic Verses-which has been compiled, printed, and published in opposition to Islam, the Prophet, and the Koran—and all those involved in the publication who were aware of its contents are sentenced to death.
I call upon all zealous Muslims to execute them quickly, wherever they may be found, so that no one else will dare to insult the Muslim sanctities. God willing, whoever is killed on this path is a martyr.
In addition, anyone who has access to the author of this book but does not possess the power to execute him should report him to the people so that he may be punished for his actions.129
Rushdie‘s blasphemy is constitutionally protected in the United States, but not in Iran, and not in numerous other countries.130 Imposition of Iranian law on Rushdie in the United States would violate the most fundamental aspect of our sovereignty—our constitutional right to freedom of speech—but if we can exercise universal jurisdiction over what we imagine violates the law of nations, why not Iran? Though the traditional formulation limits the law of nations to the usage of “civilized communities”131 or “civilized and Christian nations,”132 those limitations are not likely to be persuasive to the excluded nations.
Fifth, and most important, our judicial exercise of jurisdiction with no American nexus is profoundly illegitimate. Papua New Guinea is a small country compared to ours, but a separate one entitled to be governed by its own people. Rio Tinto is a British-Australian company, properly governed by the laws of the United Kingdom and Australia, and, to the extent it acts in Papua New Guinea, by Papua New Guinea. When Congress passed the
The judicial imperialism inherent in the exercise of universal jurisdiction threatens harm to the very people meant to be helped. For example, there can be no serious question that apartheid in the former Union of South Africa was a terrible wrong and that eliminating it was a great accomplishment for justice. But when the Second Circuit opened the door to class actions for damages resulting from apartheid,134 post-apartheid South African President Thabo Mbeki “consider[ed] it completely unacceptable that matters that are central to the future of our country should be adjudicated in foreign courts which bear no responsibility for the well-being of our country....”135 Black South Africans had their own process for dealing with the great injustice of apartheid without destroying their country. Papua New Guinea and Bougainville have suffered through a ruinous civil war that lasted for nearly a decade. However they decide to work out their reconstruction and reconciliation, that delicate process should not be distorted by our heavy, ignorant, and foreign hand.
“[J]udges ought to be exposed to the society in which the consequences of their ruling will fall, as a control on the indifferent, the frivolous, and the rigid, and an assurance that decision is taken only in conditions of full investment.”136 When judges are not part of the society they judge, there is nothing to offset the temptation towards grandiose moral posturing, attractive to people who judge disputes in societies where they have no stake. Imposition of our own moral judgments onto foreigners in foreign lands is imperialism by courts instead of gunboats, and is just as wrong.
Conclusion
Assaulting an ambassador unquestionably violates the law of nations and constitutes an actionable tort under the
This case calls for judicial humility. Instead, we arrogate to ourselves imperial authority over the whole world.
This case should be dismissed.
IKUTA, Circuit Judge, dissenting, joined by Judges KLEINFELD, CALLAHAN and BEA:
In its rush to announce which decisions of selected international tribunals, which unratified or unenforceable treaties, and which favorite academic theories create international law norms enforceable in federal courts, the majority has stumbled on the
I
The
Article III allows Congress to give federal courts authority to hear cases that fall into roughly three categories: (1) cases “arising under” the laws of the United States,
As explained in detail below, the First Congress did not give federal courts authority to hear cases in the first category (cases “arising under” the “Laws of the United States“) when it enacted the
A
The structure for analyzing the scope of a congressional grant of jurisdiction is set forth in Verlinden, which considered a situation analogous to this one. In Verlinden, the Court considered whether Congress had exceeded the scope of Article III in enacting the
Next Verlinden considered whether Congress‘s grant of subject matter jurisdiction in enacting the
After examining the history and structure of the
Applying this three-factor analysis to the
Second, in enacting the
Nor did Congress exercise its Article I powers in enacting the
Third, unlike the
In sum, Verlinden‘s three-factor analysis shows that Congress did not create substantive federal law in enacting the
B
As shown above, Verlinden eliminates the argument that international law tort suits between two aliens “arise under” the
The interpretation of the phrase “Laws of the United States” in Article III must begin with the language of the Constitution and the intent of the Framers, see United States v. Woodley, 751 F.2d 1008, 1009-10 (9th Cir.1985) (en banc), and nothing in Article III or the Constitution as a whole implies that the reference to “Laws of the United States” in Article III included the “law of nations” within its scope. Indeed, the textual evidence strongly supports the opposite conclusion. Although the Framers used the term “law of nations” in the Constitution for certain purposes, see, e.g.,
The historical evidence also supports the presumption that the Framers intentionally omitted the “law of nations” from the scope of the judicial power established in Article III. For example, there were suggestions to draft the Constitution so as to extend the judicial power to claims arising under the law of nations, see, e.g., The Federalist No. 80 (proposing that the judicial power extend to “cases arising upon treaties and the laws of nations“), and delegates at the Constitutional Convention considered specific proposals to add such language, see 3 Records of the Federal Convention of 1787 604, 608 (Max Farrand ed., Yale 1911) (quoting the plan placed before the Convention by Charles Pinck-
Taking this textual evidence as a whole, there is no support for an argument that the First Congress, a good number of whom had participated in the Constitutional Convention, see Sosa, 542 U.S. at 730; Ames v. Kansas, 111 U.S. 449, 464, 4 S.Ct. 437, 28 L.Ed. 482 (1884), understood international law to be part of the “Laws of the United States.” The Framers did not expressly include the “law of nations” in Article III, and the historical evidence weighs against a theory that the Framers implicitly included the “law of nations” in the distinct phrase, “Laws of the United States.”
This reading is confirmed by a series of subsequent Supreme Court decisions establishing that cases presenting questions of international law do not arise under the laws of the United States for purposes of Article III. See Caperton v. Bowyer, 81 U.S. 216, 228, 14 Wall. 216, 20 L.Ed. 882 (1871) (“It is said that [the plea] involves a question of international law. If it does, this can give this court no jurisdiction. The law of nations is not embodied in any provision of the Constitution, nor in any treaty, act of Congress, or any authority, or commission derived from the United States.“); N.Y. Life Ins. Co. v. Hendren, 92 U.S. 286, 286-87, 23 L.Ed. 709 (1875) (holding that the court lacked jurisdiction to hear a case involving “the general laws of war, as recognized by the law of nations applicable to this case,” because “it [was] nowhere appearing that the constitution, laws, treaties, or executive proclamations, of the United States were necessarily involved in the decision“); Am. Ins. Co. v. 356 Bales of Cotton, 26 U.S. 511, 545, 1 Pet. 511, 7 L.Ed. 242 (1828) (“A case in admiralty does not, in fact, arise under the Constitution or laws of the United States.“).4 Rather, as the majority agrees,
the law of nations “was at the time part of the so-called general common law,” which “was not federal law under the Supremacy Clause.” 542 U.S. at 739 (Scalia, J., concurring in part and concurring in the judgment); Maj. op. at 749.
Because the First Congress did not exercise its Article I powers to create substantive law and did not understand the law of nations to be part of the “Laws of the United States,” it could not have enacted the
II
That the
A
A review of the legal doctrines prevailing at the time the United States came onto the international scene shows that the well-established rules of Anglo-European “law of nations” required (among other things) that nations provide a means for aliens to redress injuries they received at the hands of citizens. According to Emmerich de Vattel, the most cited scholar in post-Revolution America,5 injuring a citi-
Because even the most developed country cannot prevent all harms to foreigners, see Vattel, § 73, at 136, an injury to an alien did not automatically constitute a violation of the law of nations unless the country approved and ratified the act of its citizen, id. § 74, at 136, either by authorizing it before, id. § 78, at 137, or, more relevant here, by failing to redress it after the fact, id. § 76, at 136-37; see also Blackstone, Commentaries *68 (stating that once the injured nation demanded “satisfaction and justice to be done on the offender,” the failure of the “the state to which he belongs” to provide such relief rendered that state “an accomplice or abettor of [its] subject‘s crime,” and drew it into “the calamities of foreign war“). Indeed, a sovereign‘s refusal to make amends did “no less a wrong” to the foreign citizen‘s nation “than if he injured [that Nation] himself,” Vattel, § 72, at 136, and “gave the [harmed] nation just cause for war,” Bellia & Clark, 78 U. Chi. L. Rev. at 477 & nn. 159-60 (citing Vattel, Burlamaqui, Pufendorf, and Grotius). See Sosa, 542 U.S. at 715 (“An assault against an ambassador, for example, impinged upon the sovereignty of the foreign nation and if not adequately redressed could rise to an issue of war.” (citing Vattel)); 1 U.S. Op. Atty. Gen. 566, 568-69 (1822) (advising the Secretary of State of his duty to deliver a Danish slave to the minister of Denmark on the ground that “any attempt on the part of the United States, or the individual citizens thereof under the sanction and protection of their government to interfere with Danish regulations [tolerating slavery] would be an invasion of the sovereignty of Denmark, and, if avowed and unredressed on our part, a just cause of war“).
To avoid giving offense or creating a ground for the injured sovereign to declare war, England allowed aliens to sue citizens for injuries to their person or their personal property. An alien could bring a common law action in an English court against a British subject, Bellia & Clark, 78 U. Chi. L.Rev. at 482 (listing assault, battery and false imprisonment among the available actions), and could even sue British subjects in an English court for acts of violence committed outside of England‘s territorial jurisdiction, id. at 483.
Suits between aliens for acts occurring in foreign countries raised a different issue, however. For one thing, nations had no duty to adjudicate them. See id. at 484 (explaining that “[u]nder the law of nations, nations declined to exercise jurisdiction over actions that were local to another nation“). For another, providing a forum might itself have offended a foreign sovereign. See Vattel, Law of Nations, bk. 2, ch. 4, § 54, at 131 (“It clearly follows from the liberty and independence of nations, that each has the right to govern itself as it thinks proper, and that no one of them has the least right to interfere in the government of another.“). In fact, Vattel‘s explanation that unless permitted by treaty, a “sovereign has the right to treat as enemies those who undertake to interfere in its domestic affairs otherwise than by their good offices,” id. § 57, at 132, dovetails neatly with Chief Justice Marshall‘s
Because adjudicating non-local suits between two aliens was neither required nor even encouraged by the law of nations, courts did not do it. See, e.g., Mostyn v. Fabrigas, (1774) 98 Eng. Rep. 1021 (K.B.); 1 Cowp. 161 (Lord Mansfield citing the example of an action between two Frenchmen based on a fight in France as an example of a case arising “outside of the British “realm which ought not to be tried anywhere but in the country” where it arose); Vernor v. Elvies (1610), 11 Mor. Dict. of Dec. 4788 (Scot.) (the Scotch Court of Sessions refusing to hear a contract action between two Englishmen that arose entirely outside of Scotland).6
B
These principles were very much on the mind of the Framers and the members of the First Congress. Before the Constitu-
Only one state (Connecticut) did so, however, see An Act to Prevent Infractions of the Law of Nations, reprinted in 4 Public Records of Connecticut for the Year 1782, 156-57 (Leonard W. Labaree ed., 1942), and it is likely that even its courts declined to exercise jurisdiction over suits between aliens. See Bellia & Clark, 78 U.Chi. L.Rev. at 492 (arguing that Brinley v. Avery, 1 Kirby 25 (Conn.Super.Ct.1786), dismissed a claim between two aliens because “British courts had exclusive jurisdiction of a claim arising between British subjects in British territory“).
Shortly thereafter, the Articles of Confederation yielded to the Constitution. Unlike its predecessor, the Constitution (specifically, Article III) provided the judicial power necessary to redress injuries that could otherwise give offense to foreign nations. First, the Framers vested the Supreme Court with original jurisdiction over “all Cases affecting Ambassadors, other public Ministers and Consuls.”
C
The First Congress addressed these same law of nations concerns in the
Section 9 (the ATS), meanwhile, conferred non-exclusive jurisdiction on the federal courts over “all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States,” which gave aliens an additional vehicle for redressing certain torts against them where the damage did not meet the $500 jurisdictional limit of Section 11. Id. § 9, 1 Stat. at 77. Taken together, this series of jurisdictional grants represented a substantial step toward “vindicat[ing] any incident which, if mishandled by a state court, might blossom into an international crisis.” Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 782 (D.C.Cir.1984) (Edwards, J., concurring).
D
In interpreting the First Congress‘s grant of jurisdiction in Section 11, the Supreme Court‘s brief analysis in Mossman v. Higginson directly addresses the jurisdictional interpretation required in this case. See 4 U.S. (4 Dall.) 12, 1 L.Ed. 720 (1800) (per curiam). Mossman involved an action under Section 11 by British merchants to foreclose their mortgage on certain property that had been seized by state commissioners and sold to third parties. First, the Court stated that Section 11 “can, and must, receive a construction, consistent with the constitution.” Id. Mossman then noted that Section 11 gave federal courts “cognizance of suits ‘where an alien is a party,’ ” but because “the legislative power of conferring jurisdiction on the federal Courts, is, in this respect, confined to suits between citizens and foreigners,” the Court had to interpret Section 11 so as to limit it to cases between aliens and citizens. See id. (emphasis in original) (“[W]e must so expound the terms of the law, as to meet the case, ‘where, indeed, an alien is one party,’ but a citizen is the other.“). There was no alternative, the Court explained, because there was no other source of subject matter jurisdiction: neither the Constitution nor Congress had given courts jurisdiction over the suit‘s specific subject matter. Id. (“Neither the constitution, nor the act of congress, regard, on this point, the subject of the suit, but the parties.“). Because the proceedings below did not state that the defendants (the third party owners of the mortgaged property) were citizens, and because the identity of the parties was “indispensable to the exercise of jurisdiction,” the Court quashed the writ of error.9
Although the Supreme Court never had occasion to interpret the jurisdictional scope of Section 9,10 Mossman‘s analysis is equally applicable to that section. Like Section 11, Section 9 gives federal courts jurisdiction over suits where an alien is a party. And like Section 11, neither the Constitution nor Congress gave federal courts an alternative source of jurisdiction for torts “in violation of the law of nations.” As explained in Part I,
III
The majority tacitly agrees that the First Congress understood that the law of nations, as part of the general common law, “was not federal law in either the jurisdiction-conferring or supremacy-clause sense.” Maj. op. at 750 (quoting William A. Fletcher, International Human Rights in American Courts, 93 Va. L.Rev. in Brief, 2 (2007) (internal quotation marks omitted)). Likewise, it agrees that the First Congress authorized federal courts to recognize pre-existing international law norms, but not to create a body of federal law, as in Lincoln Mills. See Maj. op. at 749 (“[T]he
That should be the end of the analysis, because our authority to hear cases begins and ends with the scope of the congressional grant of jurisdiction. It is well-established that only Congress “has the constitutional authority to define the jurisdiction of the lower federal courts.” Keene Corp. v. United States, 508 U.S. 200, 207, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1998). And only Congress has the authority to expand the scope of federal jurisdiction it has granted. See id. at 207 (“[O]nce the lines are drawn, limits upon federal jurisdiction must be neither disregarded nor evaded.” (second alteration in original) (internal quotation marks omitted)). In the absence of congressional action, the judiciary‘s extension of its own authority “runs contrary to the established principle that the jurisdiction of the federal courts is carefully guarded against expansion by judicial interpretation, and conflicts with the authority of Congress under Art. III to set the limits of federal jurisdiction.” Stoneridge Inv. Partners v. Scientific-Atlanta, 552 U.S. 148, 164-65, 128 S.Ct. 761, 169 L.Ed.2d 627 (2008) (quoting Cannon v. Univ. of Chi., 441 U.S. 677, 746, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) (Powell, J., dissenting)) (brackets, citation, and internal quotation marks omitted).
But instead of staying within the jurisdictional boundaries created by Congress in enacting the
But the majority‘s ahistorical theory leaps over a crucial step: whether Congress intended the
Absent such a statutory grant of authority, federal courts lack jurisdiction over international law tort suits between aliens. As previously explained, the “constitutional power” to decide a case “is merely the first hurdle that must be overcome in determining that a federal court has jurisdiction over a particular controversy.” Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 372, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978). The second, and equally significant, hurdle is congressional authorization, “[f]or the jurisdiction of the federal courts is limited not only by the provisions of Art. III of the Constitution, but also by Acts of Congress.” Id. And Congress has provided no such grant of jurisdiction either in the
The majority concedes that the federal question statute (
Sosa‘s analysis of congressional intent with respect to
This conclusion resolves the jurisdictional question raised by this appeal, and it is not necessary to reach the constitutional question raised by the majority‘s theory, namely, whether after City of Milwaukee, international law tort claims fall within the scope of Article III “arising under” jurisdiction. But in light of the foregoing analysis, the majority‘s conclusion is doubtful. For one thing, Caperton and Hendren held that international law claims, unmoored from any treaty or congressional enactment, do not arise under the Constitution or federal law; and these cases remain good law. See Hendren, 92 U.S. at 286-87; Caperton, 81 U.S. at 228. For another, the majority has not cited a single case in which the Court based its jurisdiction on a judicially created rule with international law implications. Even in the area of international relations, in which the Court has “assumed competence to make judicial rules of decision of particular importance to foreign relations,” Sosa, 542 U.S. at 726 (citing Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964)), the Court did not base its jurisdiction on those rules. See, e.g., Am. Ins. Ass‘n v. Garamendi, 539 U.S. 396, 123 S.Ct. 2374, 156 L.Ed.2d 376 (2003) (
Historical evidence also weighs against the majority‘s theory: the Framers did not extend the judicial power generally to claims arising under the law of nations, but rather expressly enumerated the components of the law of nations (international law and admiralty law) to which the judicial power would extend. See section I.B, supra. Indeed, suits between aliens may well be the only category of international tort claims not itemized in Article III, which covers suits between aliens and citizens (via the diversity clause), incidents offending ambassadors (“Cases affecting Ambassadors, other public Ministers and Consuls,”
Despite the clear-cut limitations on the scope of our jurisdiction under the
These three arguments fail for the same reason: the Supreme Court has been absolutely clear that its assumption of jurisdiction without discussion has no precedential effect. See Ariz. Christian Sch. Tuition Org. v. Winn, 131 S.Ct. 1436, 1448-49, 179 L.Ed.2d 523 (2011); Rasul v. Bush, 542 U.S. 466, 496-97, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004) (“Of course ‘the existence of unaddressed jurisdictional defects has no precedential effect.‘” (quoting Lewis v. Casey, 518 U.S. 343, 352 n. 2, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996))); United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38, 73 S.Ct. 67, 97 L.Ed. 54 (1952) (“[T]his Court has followed the lead of Chief Justice Marshall who held that this Court is not bound by a prior exercise of jurisdiction in a case where it was not questioned and it was passed sub silentio.“). It is apparent that neither Sosa‘s failure to mention our erroneous jurisdictional holding in overruling Alvarez-Machain, nor its failure to address an argument amounting to a half page in two amicus briefs, among 21 such briefs comprising over 360 pages in the aggregate,14 is binding on us or the Court.
Indeed, Sosa had no reason to address the Article III issues lurking in the background, because the tort claims against Sosa shared a common nucleus of operative fact with his original and jurisdictionally unproblematic claims against the United States under the
In sum, the majority has failed to identify any basis for exercising jurisdiction over this suit between two aliens. All it has to rely on is its own pronouncement of jurisdiction.
IV
The First Congress was careful. It drafted the Judiciary Act to provide courts with jurisdiction in those cases that would help the nation avoid giving offense to foreign nations. But it limited this grant of jurisdiction to prevent courts from meddling in a foreign sovereign‘s affairs in a manner that would engender the very offense that the First Congress sought to avoid.
The majority fails to show the same wisdom. Proving that the judiciary lacks the “aptitude” for decisions pertaining to foreign policy, Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111, 68 S.Ct. 431, 92 L.Ed. 568 (1948), the majority accords itself the power to hear virtually any claim by an alien against other aliens for torts anywhere in the world, despite the obvious potential for working the types of mischief the Framers aimed to avoid. See Br. of the Governments of the United Kingdom of Great Britain and Northern Ireland and the Commonwealth of Australia as Amici Curiae in Supp. of Defs-Appellees/Cross-Appellants 1 (arguing that they have long maintained “their opposition to overly broad assertions of any extraterritorial civil jurisdiction arising out of aliens’ claims for alleged injuries sustained abroad ... [which] is based on their concern that such exercises of jurisdiction are contrary to international law and create a substantial risk of jurisdictional conflicts“). See also Government of Switzerland, Aide Memoire (2007) (stating, in opposition to the Second Circuit‘s decision in Khulumani v. Barclay Nat. Bank. Ltd., 504 F.3d 254 (2nd Cir.2007), that “a broad assertion of jurisdiction to provide civil remedies for violations perpetrated by foreign corporations against aliens in foreign places is inconsistent with international law and may indeed undermine efforts to promote human rights and their protection“), reprinted in Br. for the United States as Amicus Curiae in Supp. of Petitioners app. C at 7a-8a, Am. Isuzu Motors, Inc. v. Ntsebeza, 553 U.S. 1028, 128 S.Ct. 2424, 171 L.Ed.2d 225 (2008) (mem.) (No. 07-919).
Even more concerning, however, is that the majority has not placed any limit on how it will select and apply rules of international law. Without legislative direction or even a legal framework, the majority announces in conclusory fashion that “international law” recognizes both corporate liability and aiding and abetting liability,
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. I dissent from this ill-conceived, ill-reasoned, and, I fear, ill-fated exercise of judicial power.
GYPSUM RESOURCES, LLC, a Nevada Limited Liability Company, Plaintiff-Appellee,
v.
Catherine Cortez MASTO, in her official capacity as Attorney General of the State of Nevada and her agents and successors, Defendant-Appellant,
and
David Roger; County of Clark; Board of County Commissioners of the County of Clark, Defendants.
No. 09-17849.
United States Court of Appeals, Ninth Circuit.
Oct. 31, 2011.
Catherine Cortez Masto, pro se.
Bryan L. Stockton, Senior Deputy Attorney General, Carson City, NV, for Defendant-Appellant.
Edward G. Burg, George M. Soneff, Manatt, Phelps & Phillips, LLP, Los Angeles, CA, for Plaintiff-Appellee.
Brenda J. Erdoes, Legislative Counsel, Kevin C. Powers, Senior Principal Deputy Legislative Counsel, Nevada Legislative Counsel Bureau, Legal Division, Carson City, NV, for Amicus Curiae.
Before: RICHARD A. PAEZ, MARSHA S. BERZON, and CARLOS T. BEA, Circuit Judges.
Certification Order
Pursuant to Nevada Rule of Appellate Procedure 5, we respectfully certify questions to the Nevada Supreme Court. The answer to these questions will be determinative of the matter pending before this court, and there is no clearly controlling precedent in the decisions of the Nevada Supreme Court.
Submission of this case is vacated and all further proceedings are stayed pending receipt of an answer to the certified questions. The parties shall notify the Clerk of this court within one week after the Nevada Supreme Court accepts or rejects the certified questions, and again within one week after the Nevada Supreme Court renders its answers.
As further explained below, we respectfully certify the following questions to the Nevada Supreme Court:
1. Does Nevada Senate Bill No. 358 (Act of May 19, 2003, ch. 105, 2003 Nev.
Notes
any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195 (entered into force Jan. 4, 1969), art. 1(a). I also disagree with some of the reasoning in Part IV.C, concerning crimes against humanity. Despite the majority‘s implication that Article 25(3)(c)‘s “purpose” language describes a specific intent standard—and, thus, that the required mens rea is subject to dispute—Article 25(3)(c) may simply be an alternative statement of the knowledge standard. See Scheffer & Kaeb, The Five Levels of CSR Compliance, supra, at 334, 355 (“The “purpose” language stated the de minimus and obvious point, namely, that an aider or abettor purposely acts in a manner that has the consequence of facilitating the commission of a crime....“); Brief of Amici Curiae International Law Scholars in Support of Plaintiffs-Appellants at 20-21 (Feb. 18, 2010) (“[The purpose] language has yet to be construed by the ICC and may be interpreted to be consistent with customary international law, which does not contain a specific intent requirement. In the absence of a specific intent requirement, a perpetrator must act intentionally, but must only be aware of the likely outcome.“). Like the majority in Doe v. Exxon, I read the Attorney General‘s opinion to conclude that the criminal jurisdiction of the federal courts was limited in the case of piracy to acts committed on the high seas but that the civil jurisdiction was not so limited, and that the courts could provide a forum for a tort suit arising from incidents within the territorial bounds of Sierra Leone. 654 F.3d at 23-25. The Supreme Court‘s reference in Sosa supports this interpretation. See Sosa, 542 U.S. at 721, 124 S.Ct. 2739 (summarizing the inquiry submitted to Bradford as “whether criminal prosecution was available against Americans who had taken part in the French plunder of a British slave colony in Sierra Leone,” and concluding Bradford advised that “a federal court was open for the prosecution of a tort action growing out of the episode.” (emphasis added)). “Exhaustion Requirement” meant plaintiffs would be first required to sue defendant in the courts of Papua-New Guinea, where they alleged the defendant did what they claim hurt them. Only after pursuing their legal remedies there—or proving such pursuit was futile—could plaintiffs attempt to use U.S. courts. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L. Ed. 60 (1803). The majority is correct that neither party raised this jurisdictional issue. See Maj. op. at 743. Its account is incomplete, however: five judges voted to request supplemental briefing on this issue, but in a surprising and unprecedented decision, six judges voted against obtaining the parties’ input on this issue. Nevertheless, we must address this key jurisdictional concern sua sponte, even without the benefit of the parties’ briefing on this issue. See Travelers Indem. Co. v. Bailey, 557 U.S. 137, 129 S.Ct. 2195, 2205-06, 174 L.Ed.2d 99 (2009) (“[Federal courts] are courts with authority, when parties are brought before them in accordance with the requirements of due process, to determine whether or not they have jurisdiction to entertain the cause and for this purpose to construe and apply the statute under which they are asked to act.” (alteration in original) (quoting Chicot Cnty. Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 376, 60 S.Ct. 317, 84 L.Ed. 329 (1940)) (internal quotation marks omitted)).
During the campaign, the Bougainvilleans risked their own lives time and time again to aid the Allied cause. Bougainvilleans helped the Australian coastwatchers monitor Japanese military movements across the island. Harry A. Gailey, Bougainville, 1943-1945: The Forgotten Campaign 35 (1991). Because the Bougainvilleans were familiar with the island terrain, they were able to stealthily navigate the jungles and swamps, serving as guides to the Allied troops and gathering intelligence on Japanese military camps. Rentz, at 11, 17-18, 74; Gailey, at 58; Henry I. Shaw, Jr. & Douglas T. Kane, Historical Branch, G-3 Division, Headquarters, U.S. Marine Corps, Isolation of Rabaul 174 (1963). Many brave Bougainvilleans and Allied troops lost their lives in the fight to secure the island of Bougainville. See Rentz, at 140. The United States has signed but not ratified UNCLOS. However, the convention‘s core provisions are generally accepted as customary international law. United States v. Alaska, 503 U.S. 569, 588, n. 10, 112 S.Ct. 1606, 118 L.Ed.2d 222 (1992) (“[T]he United States has not ratified [the United Nations Convention on the Law of the Sea], but has recognized that its baseline provisions reflect customary international law[.]” (internal quotation marks and citation omitted)). Morrison v. National Australia Bank Ltd., — U.S. —, 130 S.Ct. 2869, 2894 n. 11, 177 L.Ed.2d 535 (2010) (Stevens, J., concurring).