Wednesday, October 26, 2011

Corporate Liability Under the ATCA: Rio Tinto Revisited

On October 25, 2011 the United States Court of Appeals for the Ninth Circuit, sitting en banc, decided Sarei v. Rio Tinto, PLC on Oct. 25, 2011 in an opinion written by Judge Schroeder. Rio Tinto V, No. 02-56256, slip op. (9th Cir. 2011), Sarei v. Rio Tinto, PLC (Rio Tinto V), __ F.3d. __, 2011 WL 5041927 (9th Cir. Oct. 25, 2011).

With regard to the applicability of the Alien Tort Statute, 28 U.S.C. §1350, to corporations, the court addressed two issues:
  1. "whether the [Alien Tort Statute] itself bars all corporate liability, and to the extent it applies to private actors, permits liability only as to individuals" Rio Tinto V, slip op. at 19339 , __ F.3d at *6. and
  2. "whether, if there is no overall statutory bar to corporate liability, the particular internationally accepted norm alleged to have been violated recognizes corporate liability." Rio Tinto V, slip op. at 19339 , __ F.3d at *6.

Alien Tort Statute Does Not Bar Corporate Liability, Opinion Part II(A)
Regarding the first issue, the Ninth Circuit majority adopted Judge Leval's concurring view in Kiobel v. Royal Dutch Petroleum Co.: “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.” Rio Tinto V, slip op. at 19339 , __ F.3d at *6, quoting 621 F.3d 111, 153 (2010) (Leval, J., concurring). Cf. The United States Court of Appeals for the Second Circuit's majority opinion of the three-person panel in Kiobel holding that "[b]ecause corporate liability is not recognized as a “specific, universal, and obligatory” norm, see Sosa, 542 U.S. at 732, 124 S.Ct. 2739 (internal quotation marks omitted), it is not a rule of customary international law that we may apply under the ATS." Id. at 145. The Ninth Circuit's ruling represents a split between the Second and Ninth Circuits on this issue. Rachel Anderson, Circuit Split on Corporate Liability under the ATCA Now at the U.S. Supreme Court, Oct. 27, 2011. The U.S. Supreme Court granted cert in Kiobel on October 17, 2011.  Kiobel v. Royal Dutch Petroleum, 621 F.3d 111 (2d Cir. 2010), cert. granted, 80 U.S.L.W. 3237 (U.S. Oct. 17, 2011) (No. 10-1491). Rachel Anderson, U.S. Supreme Court Takes Up Issue of Corporate Liability for Human Rights Violations, Oct. 19, 2011. For more information about the circuit split go to Rachel Anderson, Circuit Split on Corporate Liability under the ATCA Now at the U.S. Supreme Court, Oct. 27, 2011.

Scope of Corporate Liability Under the Alien Tort Claims Act
Regarding the second issue, the Ninth Circuit majority concluded that "a violation of a sufficiently established international norm" could give rise to a cause of action for corporate liability under the Alien Tort Statute. Rio Tinto V, slip op. at 19341, __ F.3d at *7. The Court noted that "[i]nternationally accepted norms must be “specific, universal, and obligatory.” Rio Tinto V, slip op. at 19333, __ F.3d at *2, citing Sosa v. Alvarez-Machain, 542 U.S. at 732 (citing with approval In re Estate of Ferdinand Marcos, Human Rights Litig., 25 F.3d 1467, 1475 (9th Cir. 1994))."

Claims of Genocide May Give Rise to Corporate Liability Under the Alien Tort Statute
The prohibition against genocide is sufficiently specific, universal, and obligatory. Rio Tinto V, slip op. at 19359-61, __ F.3d *17-23.
  • Definition of Genocide: Genocide is defined under the 1948 U.N. Genocide Convention and the 1987 U.S. Genocide Convention Implementation Act.  Rio Tinto V, slip op. at 19361, __ F.3d at *17-18, citing United Nations Convention on the Prevention and Punishment of the Crime of Genocide ("Genocide Convention"), art II, Dec. 9, 1948, 78 U.N.T.S. 277 (entered into force Jan. 12, 1951) and Genocide Convention Implementation Act of 1987 ("Implementation Act"), 18 U.S.C. §1091 et seq.  It is also defined as a jus cogens norm under domestic law and international law. Rio Tinto V, slip op. at 19361, __ F.3d at *18, citing Genocide Convention, art II; the Implementation Act, 18 U.S.C. §1091(a); Rome Statute, art. 6; ICTY Statute, art. 4; and ICTR Statute, art. 2.
  • Universal and Obligatory Prohibition Against Genocide: The criminalization of genocide is indisputably a jus cogens norm. Rio Tinto V, slip op. at 19360, __ F.3d at *18, citing Restatement Third, §§ 404, 702; Siderman de Blake, 965 F.2d at 717; Rome Statute, art. 6; ICTY Statute, art. 4; ICTR Statute, art. 2.
  • HOLDING on Corporate Liability for Genocide: The Court held that: "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." Rio Tinto V, slip op. at 19363, __ F.3d at *20, citing Genocide Convention. Cf. Kiobel, 621 F.3d at 120.
Claims of War Crimes Give Rise to a Cause of Action and May Give Rise to Corporate Liability Under the Alien Tort Statute
  • Definition of War Crimes: "War crimes are defined primarily by the Geneva Conventions, to which the United States, along with at least 180 nations, is a party and which constitute part of customary international law." Rio Tinto V, slip op. at 19370, __ F.3d at *23, citing e.g., Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, S. Exec. Rep. 101-30, at 15 (1990).
  • Universal and Obligatory Prohibition against War Crimes: War crimes, by their incorporation in the Geneva Conventions, are part of customary international law. Rio Tinto V, slip op. at 19369, __ F.3d at *24, citing, e.g., Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, S. Exec. Rep. 101-30, at 15 (1990) (“[T]he Geneva Conventions, to which the United States and virtually all other countries are Parties, . . . generally reflect customary interna- tional law.” "War crimes are also among the crimes of “universal concern” in Restatement (Third), § 404." Rio Tinto V, slip op. at 19370, __ F.3d at *24.
  • HOLDING on Corporate Liability for War Crimes: The Court held that: "international law extends the scope of liability for war crimes to all actors, including corporations." Rio Tinto V, slip op. at 19372, __ F.3d at 25. The court noted that "at least two district courts have found that corporations may be liable for war crimes under the ATS" and that the "Eleventh Circuit has noted that corporations may be liable under the ATS for war crimes claims." Rio Tinto V, slip op. at 19371-72, __ F.3d at 24-25, citing In re Xe Servs. Alien Tort Litig., 665 F. Supp. 2d 569; Wissam Abdullateff Sa’eed Al- Quraishi v. Adel Nakhla, 2010 U.S. Dist. LEXIS 76450, *92- 93 (D. Md. 2010); and Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1263 (11th Cir. 2009). 
Claims of Crimes Against Humanity Arising from a Medical and Food Blockade Did Not Give Rise to a Cause of Action Under the Alien Tort Statute
"In the absence of [a recognized source of international law that qualifies a food and medical blockade as a crime against humanity], a food and medical blockade does not violate a specific internationally recognized norm within the meaning of Sosa." Rio Tinto V, slip op. at 19377, __ F.3d at *25.

Claims of Racial Discrimination Did Not Give Rise to a Cause of Action Under the Alien Tort Statute
The Court held that the norm prohibiting systematic racial discrimination is not sufficiently specific and obligatory to give rise to a cause of action under the Alien Tort Statute. Rio Tinto V, slip op. at 19378, __ F.3d at *28. The court found that there is not a sufficiently specific definition of "systematic racial discrimination" under the Convention on Racial Discrimination and that because the United States' ratification of the Convention declared that it was not self-executing, "the treaty alone does not establish a norm sufficiently specific, universal, and obligatory to give rise to a cause of action under the ATS, because the treaty provisions are not enforceable in our courts." Rio Tinto V, slip op. at 19378-79, __ F.3d at *28, citing International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195 (entered into force Jan. 4, 1969); U.S. Reservations, Declarations, and Understandings, International Convention on the Elimination of All Forms of Racial Discrimination, §III, 140 Cong. Rec. S7634- 02 (June 24, 1994); and Sosa, 542 U.S. at 735.

Claims of Apartheid May Give Rise to a Cause of Action Under the Alien Tort Statute
However, the Court distinguished racial discrimination from apartheid and notes that "a claim akin to apartheid would be cognizable under the ATS." Rio Tinto V, slip. op. at 19380, __ F.3d at *29.

Claims of Aiding and Abetting May Give Rise to a Cause of Action Under the Alien Tort Statute
Aiding and abetting may give rise to a claim under the Alien Tort Statute. Rio Tinto V, slip op. at 19342, __ F.3d at *7, citing Khulumani v. Barclay Nat'l Bank Ltd., 504 F.3d at 260; Romero v. Drummond Co., 552 F.3d 1303, 1315 (11th Cir. 2008).

Claims of Aiding and Abetting War Crimes May Give Rise to a Cause of Action Under the Alien Tort Statute
Purposive action in furtherance of a war crime constitute aiding and abetting and "[a]llegations of such purposive action are therefore cognizable under the [Alien Tort Statute]." Rio Tinto V, slip op. at 19373, __ F.3d at *26, citing Sosa, 542 U.S. at 732. Whether the mens rea of knowledge is required for aiding and abetting war crimes remains disputed. Rio Tinto V, slip op. at 19372, __ F.3d at *26.


Note: With the goal of making this information accessible to both the public and the legal community, this post cites to the slip opinion, which is publicly available on the Ninth Circuit website at http://www.ca9.uscourts.gov/datastore/opinions/2011/10/25/02-56256.pdf, and the Westlaw cite for this case.

1 comment:

  1. Excellent post, Rachel! Enjoyed and profited from it.

    Leila Sadat and a few others have made some interesting points about the decision. Leila points out that, although we are stuck in this line of cases with the issue of whether customary international law embodies some requirement of corporate civil liability, the reality is that states appear free to impose such a requirement or not to do so. The fact is that U.S. domestic law calls for corporate civil liability for genocide, war crimes, and crimes against humanity, and international law permits this. No doubt in my mind that corporations ought to be held liable when they participate in such atrocity and customary international law ought to incorporate that rule, so to speak. Moreover, corporate officials who can be proved to have participated ought to be held criminally liable. The rub, however, is whether the U.S. Supreme Court as it currently is embodied will listen? Sadly, I doubt it. Hope I'm wrong.

    So it goes,
    Chris Blakesley

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