WASHINGTON -- Corporations can be held liable in U.S. courts for human rights violations committed abroad, the U.S. Court of Appeals for the 9th Circuit ruled on Wednesday. The 9th Circuit reached the same conclusion as two other appeals courts, the 7th and D.C. Circuits, which further isolates the 2nd Circuit's contrary determination, slated for Supreme Court review this term.
The case, Sarei v. Rio Tinto, arises out of a lawsuit brought in 2000 alleging that Rio Tinto, a multinational mining company, is responsible for the deaths of about 15,000 residents on the island of Bougainville in Papua New Guinea. In 1988, Bougainville residents revolted against Rio Tinto, sabotaging its mine and citing the company's displacement of villages, major pollution and systematic discrimination against native workers. At Rio Tinto's urging, the Papua New Guinea government sent in its military and, with the use of Rio Tinto helicopters and vehicles, killed many people in an effort to put down the revolt. Soon thereafter, Papua New Guinea imposed a military blockade on Bougainville to secure the mine, and the country fell into a decade-long civil war.
Wednesday's ruling by an 11-judge panel found that corporations can be sued for genocide and war crimes under the Alien Tort Statute. That law, passed by the first Congress in 1789, allows foreign plaintiffs to bring suit in federal courts for violations of "the law of nations."
Conspicuously absent from the Alien Tort Statute, however, is any language defining who or what can be a defendant in such suits. The 9th Circuit held that corporations can be sued under the law, although its seven-judge majority splintered over the reason why. Four judges agreed that a court "should consider separately each violation of international law alleged and which actors may violate it," two others emphasized that "courts should first look to [domestic law] to see if the corporate defendant is within the ambit" of liability for the alleged wrongdoing, and one judge signed onto both takes. Four additional judges dissented, concluding that the Alien Tort Statute does not cover "suits between aliens for acts occurring in foreign countries," and therefore they did not reach the question of corporate liability at all.
The differences of opinion both within the 9th Circuit's majority and between the court's majority and the dissenting judges further exacerbate the problem of warring interpretations of the Alien Tort Statute, with another court rejecting corporate liability altogether, a third court looking to domestic law to determine appropriate defendants, and a fourth giving flippant approval to foreign plaintiffs' claims against corporations.
Mercifully, the Supreme Court will settle the matter by the end of June. Which side the Court will take mercy upon -- the corporations or those they allegedly harmed -- will be hotly anticipated until then.