In October, in a summary order, the 9th Circuit referred claims against British-Australian mining concern Rio Tinto to mediation. [Sarei v. Rio Tinto, 625 F.3d 561] The suit was brought as a class action under the Alien Tort Statute by citizens of Papua New Guinea, who claimed that Rio Tinto caused environmental damage to the island of Bougainville through its copper mining operations, otherwise wronged the indigenous people, and sparked a civil war in the country.
What is notable about the order is Judge Kleinfeld’s dissent, and particularly his views on the Alien Tort Statute. He thought referring the case to mediation was inappropriate before deciding whether the court had jurisdiction, and on that point he had serious doubts. The case involved alien plaintiffs, a foreign corporation, and claims arising out of events in Papua New Guinea. It was therefore “entirely extraterritorial.” The Alien Tort Statute, in Judge Kleinfeld’s view, did not create jurisdiction for this kind of case.
Other federal human rights statutes, such as the Torture Victims Protection Act, have extraterritorial application by their terms. But the ATS, laconic as it is — “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” – doesn’t say one way or the other whether some sort of U.S. nexus is necessary to the exercise of jurisdiction. And there is a longstanding presumption in American law that “[w]hen a statute gives no clear indication of an extraterritorial application, it has none.” *
That the ATS grants jurisdiction only for claims with some reasonably direct connection to the United States seems plausible given the reasons for its promulgation in 1789:
It is risible to think [Kleinfled argues] that the first Congress wrote the Alien Tort Statute intending to enable federal courts to adjudicate claims of war crimes committed abroad. Were it otherwise, a French aristocrat who had escaped the guillotine and fled to Philadelphia could have sued French defendants in our newly organized federal courts, perhaps even Robespierre himself, and obtained an injunction commanding the bloody French revolutionaries to stop immediately. Perhaps we should have mediated the French Revolution, or issued a preliminary injunction to maintain the status quo while we decided whether we had jurisdiction? This silly hypothetical would be analogous to our adjudicating or mediating the class action claims in this case. The point of the Alien Tort Statute was to keep us out of international disputes, not to inject us into them.
Judge Reinhardt responded to Kleinfeld’s dissent, confidently asserting that referral of the dispute to mediation would not reignite the civil war in Papua New Guinea “or cause any other disruption of international affairs.”
