Academic journal article Washington International Law Journal

The International Law Exception to the Act of State Doctrine: Redressing Human Rights Abuses in Papua New Guinea

Academic journal article Washington International Law Journal

The International Law Exception to the Act of State Doctrine: Redressing Human Rights Abuses in Papua New Guinea

Article excerpt


In 2002, residents of Bougainville, an island in Papua New Guinea ("PNG"), brought a class action suit in the Central District of California against Rio Tinto PLC, an international mining conglomerate. They sought redress for over three decades of human rights violations perpetrated by Rio Tinto through its strip mining operations and its participation in the PNG government's violent suppression of civil dissent. The victims brought their claims under the Alien Tort Claims Act ("ATCA")' in Sarei v. Rio Tinto PLC,2 alleging violations of customary international law ("CIL") norms prohibiting severe environmental devastation, racial discrimination, genocide and crimes against humanity, and unlawful targeting of civilians during armed conflict. By relying in part on the Act of State Doctrine ("ASD"), the federal district court granted defendant Rio Tinto's motion to dismiss, barring a full determination on the merits.3 On appeal, the Ninth Circuit reversed the dismissal, deciding that the ASD cannot bar claimed violations of non-derogable CIL norms, and remanded for reconsideration of whether the ASD may apply to claims based on less developed norms.4

This case represents a broader misunderstanding in U.S. courts that the ASD applies whenever adjudication of claims derived from international human rights law may adversely impact the political branches' conduct of foreign policy. Although the PNG residents based their claims on firmlyestablished international legal rules, the district court in Sarei applied the ASD in light of concerns expressed by the PNG government and the U.S. executive that continued litigation could impede the peace process concluding the decade-long civil war. A correct understanding of the ASD, however, recognizes that courts may only apply the doctrine in the absence of applicable treaty provisions or widely-accepted CIL rules, because these rules represent obligations to which the U.S. and other sovereigns have mutually consented. Further, applying the ASD creates the anomalous situation in which a court presumes the legal validity of Rio Tinto's joint conduct with the PNG government, conduct that is prohibited under international human rights law.

In Banco National de Cuba v. Sabbatino5 the Supreme Court held that the ASD would bar judicial scrutiny of a foreign state's act to avoid potential interference with the political branches' conduct of foreign relations, absent a treaty or other unambiguous agreement on a controlling rule of international law. International human rights law comprises international treaties and widely-accepted CIL rules defining individuals' fundamental rights vis-à-vis states. Therefore, the availability of a widely accepted CIL rule defining a specific obligation precludes courts from applying the ASD. An "international law" exception to the doctrine for treaty obligations and crystallized CIL norms that represent unambiguous agreement between states on controlling points of law exists.

Federal courts must apply both the domestic and international legal rules created by the political branches. In Sarei v. Rio Tmto, PNG residents brought their claims under the congressionally-enacted ATCA, which invokes CIL norms to which the U.S. and PNG have consented at the international level. Federal courts should proceed with the litigation, unless preempted by an international agreement between the U.S. and PNG concerning the claims. This is consistent with the federal judiciary's responsibilities under the U.S. Constitution, and preserves the equal status CIL shares with explicit international agreements.

Part II of this comment describes the factual basis of the PNG residents' racial discrimination and environmental tort claims-the alleged joint conduct between Rio Tinto and the PNG government in the operation of the Panguna mine and during the country's recent civil war. Part III explains that the judicially-created ASD cannot prevent adjudication on the merits of politically sensitive cases according to governing international law. …

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