Sarei v. Rio Rinto, Plc , 456 F.3d 1069 ( 2006 )

Volume 1 of 2
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
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 TAMUASI;
NORMAN MOUVO; JOHN OSANI; BEN No. 02-56256
KORUS; NAMIRA KAWONA; JOANNE
BOSCO; JOHN PIGOLO; MAGDALENE
 D.C. No.
CV-00-11695-
PIGOLO, individually and on behalf MMM
of themselves and all others
similarly situated,
Plaintiffs-Appellants,
v.
RIO TINTO, PLC; RIO TINTED
LIMITED,
Defendants-Appellees.

8935
8936 SAREI v. RIO TINTO
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 TAMUASI; No. 02-56390
NORMAN MOUVO; JOHN OSANI; BEN D.C. No.
KORUS; NAMIRA KAWONA; JOANNE
BOSCO; JOHN PIGOLO; MAGDALENE
 CV-00-11695-
MMM
PIGOLO, individually and on behalf
of themselves and all others OPINION
similarly situated,
Plaintiffs-Appellees,
v.
RIO TINTO, PLC; RIO TINTED
LIMITED,
Defendants-Appellants.

Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Argued and Submitted September 8, 2003
Submission Withdrawn December 11, 2003
Reargued and Resubmitted
June 23, 2005—San Francisco, California
Filed August 7, 2006
SAREI v. RIO TINTO 8937
Before: Raymond C. Fisher and Jay S. Bybee,
Circuit Judges, and James C. Mahan,* District Judge.
Opinion by Judge Fisher;
Dissent by Judge Bybee
*The Honorable James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.
SAREI v. RIO TINTO 8941
COUNSEL
Steve W. Berman (argued), R. Brent Walton and Nicholas
Styant-Browne, Hagens Berman Sobol Shapiro LLP, Seattle,
Washington; Paul N. Luvera, Jr. and Joel D. Cunningham,
Luvera, Barnett, Brindley, Beninger & Cunningham, Seattle,
Washington; and Paul Stocker, Mill Creek, Washington, for
the plaintiffs-appellants/cross-appellees.
James J. Brosnahan, Jack W. Londen (argued) and Peter J.
Stern, Morrison & Foerster LLP, San Francisco, California,
and Charles E. Patterson, Morrison & Foerster LLP, Los
Angeles, California, for the defendants-appellees/cross-
appellants.
Sir Ninian M. Stephen, Melbourne, Australia, and Judge Ste-
phen M. Schwebel, Washington, D.C., as amici curiae in sup-
port of the defendants-appellees/cross-appellants.
OPINION
FISHER, Circuit Judge:
This appeal presents questions of justiciability and exhaus-
tion in the context of the Alien Tort Claims Act, 28 U.S.C.
§ 1350 (“ATCA”). Plaintiffs are current or former residents of
Bougainville, Papua New Guinea (“PNG”), who allege that
they or their family members were the victims of numerous
violations of international law as a result of defendant mining
corporation Rio Tinto, PLC’s (“Rio Tinto”) Bougainville min-
ing operations and the 10-year civil conflict that followed an
8942 SAREI v. RIO TINTO
uprising at the Rio Tinto mine.1 The plaintiffs appeal the dis-
trict court’s dismissal of their lawsuit seeking redress under
the ATCA, which provides that “[t]he 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.” 28 U.S.C. § 1350.
Although several different doctrines of justiciability are at
issue here — the political question doctrine, the act of state
doctrine and the doctrine of international comity — all in
effect provide different ways of asking one central question:
are United States courts the appropriate forum for resolving
the plaintiffs’ claims? The answer to this question turns in
part on the weight to be given to a statement of interest sub-
mitted by the United States Department of State (“State
Department”) asserting that continuation of the lawsuit
“would risk a potentially serious adverse impact . . . on the
conduct of [United States] foreign relations.” Rio Tinto’s
cross-appeal also argues that the ATCA requires exhaustion
of local remedies — yet another way of questioning whether
there is a different and more appropriate forum to develop and
try these claims.
We conclude that most of the plaintiffs’ claims may be
tried in the United States. We hold that the district court erred
in dismissing all of the plaintiffs’ claims as presenting nonjus-
ticiable political questions, and in dismissing the plaintiffs’
racial discrimination claim under the act of state doctrine. We
also vacate for reconsideration the district court’s dismissal of
the plaintiffs’ United Nations Convention on the Law of the
Sea (“UNCLOS”) claim under the act of state doctrine, and
its dismissal of the racial discrimination and UNCLOS claims
under the international comity doctrine. Although Rio Tinto
and amicus curiae have asserted several plausible rationales
in support of an exhaustion requirement, we affirm the district
1
The plaintiffs, who appear as appellants and cross-appellees in this
appeal, will be referred to as “plaintiffs” throughout.
SAREI v. RIO TINTO 8943
court’s conclusion that no such requirement presently exists,
and leave it to Congress or the Supreme Court to alter the sta-
tus quo if warranted.
I. BACKGROUND
Because this case arises from a dismissal under Federal
Rule of Civil Procedure 12(b)(6), we accept all facts alleged
in the plaintiffs’ complaint as true and construe them in the
light most favorable to the plaintiffs. Transmission Agency v.
Sierra Pac. Power Co., 295 F.3d 918, 923 (9th Cir. 2002).
If plaintiffs’ allegations are believed, the defendant Rio
Tinto, an international mining company, with the assistance of
the PNG Government, committed various egregious viola-
tions of jus cogens norms and customary international law
including racial discrimination, environmental devastation,
war crimes and crimes against humanity, with severe reper-
cussions for many citizens of PNG.2
A. The Bougainville Civil Uprising
Rio Tinto is an international mining group headquartered in
London. During the 1960s, Rio Tinto sought to build a mine
in the village of Panguna on Bougainville, an island province
of PNG. Rio Tinto offered the PNG government 19.1 percent
of the mine’s profits to obtain its assistance in this venture.
Operations commenced in 1972. Each day, approximately
300,000 tons of ore and waste rock were blasted, excavated
and removed from the mine, producing 180,000 tons of cop-
2
A jus cogens norm “is a norm accepted and recognized by the interna-
tional community of states as a whole as a norm from which no derogation
is permitted and which can be modified only by a subsequent norm of gen-
eral international law having the same character.” Siderman de Blake v.
Republic of Argentina, 965 F.2d 699, 714 (9th Cir. 1992) (quoting Vienna
Convention on the Law of Treaties, art. 53, May 23, 1969, 1155 U.N.T.S.
332, 8 I.L.M. 679).
8944 SAREI v. RIO TINTO
per concentrate and 400,000 ounces of gold annually. The
resulting waste products from the mine polluted Bougain-
ville’s waterways and atmosphere and undermined the physi-
cal and mental health of the island’s residents. In addition, the
islanders who worked for Rio Tinto, all of whom were black,
were paid lower wages than the white workers recruited off
island and lived in “slave-like” conditions.
In November 1988, Bougainvilleans engaged in acts of sab-
otage that forced the mine to close. Rio Tinto sought the assis-
tance of the PNG government to quell the uprising and reopen
the mine. The PNG army mounted an attack on February 14,
1990, killing many civilians. In response, Bougainvilleans
called for secession from PNG, and 10 years of civil war
ensued.
During the 10-year struggle, PNG allegedly committed
atrocious human rights abuses and war crimes at the behest of
Rio Tinto, including a blockade, aerial bombardment of civil-
ian targets, burning of villages, rape and pillage. Plaintiffs
assert that the war has ravaged the island and devastated its
inhabitants. Thousands of Bougainville’s residents have died;
those who survived suffer health problems, are internally dis-
placed and live in care centers or refugee camps or have fled
the island.
The plaintiffs filed suit in federal district court seeking
compensatory, punitive and exemplary damages, as well as
equitable and injunctive relief on environmental contamina-
tion and medical monitoring claims, and attorney’s fees and
costs. They also seek disgorgement of all profits earned from
the mine.
B. The State Department’s Statement of Interest
After Rio Tinto moved to dismiss the first amended com-
plaint, the district court, by letter dated August 30, 2001,
sought guidance from the State Department “as to the effect,
SAREI v. RIO TINTO 8945
if any, that adjudication of this suit may have on the foreign
policy of the United States.”
On November 5, 2001, the State Department filed a state-
ment of interest (“SOI”). After noting that the district court
had not asked the United States to comment on the act of state
and political question doctrines, the State Department
reported that “in our judgment, 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,” and that PNG, a “friendly foreign state,” had “perc-
eive[d] the potential impact of this litigation on U.S.-PNG
relations, and wider regional interests, to be ‘very grave.’ ”
Attached to the SOI was the PNG government’s communique
stating that the case “has potentially very serious social, eco-
nomic, legal, political and security implications for” PNG,
including adverse effects on PNG’s international relations,
“especially its relations with the United States.”
The plaintiffs responded by submitting as offers of proof
declarations from peace agreement participants stating that
the agreement would not be affected by the litigation, and in
fact would be strengthened. The plaintiffs later asked the State
Department to “clarify” its submission to the court. The State
Department on May 20, 2002 informed the district court that
it “did not intend to file another statement of interest” in
response.
C. The District Court’s Dismissal
The district court dismissed the first amended complaint in
a comprehensive and thoughtful ruling on March 20, 2002. It
issued an amended opinion on July 9, 2002. Sarei v. Rio
Tinto, PLC, 221 F. Supp. 2d 1116 (C.D. Cal. 2002). The court
found that the plaintiffs had stated cognizable ATCA claims
for racial discrimination, crimes against humanity and viola-
tions of the laws of war, but that of the environmental claims,
only the violation of the United Nations Convention on the
8946 SAREI v. RIO TINTO
Law of the Sea (“UNCLOS”) was cognizable under the
ATCA. Id. at 1139-1163. The court further held that if
proven, the allegations supported liability against Rio Tinto
for certain acts committed by the PNG government. Id. at
1148-49. The court, however, dismissed all of the plaintiffs’
claims as presenting nonjusticiable political questions. Id. at
1193-1199. The court alternatively dismissed the racial dis-
crimination and UNCLOS claims under the act of state doc-
trine and the doctrine of international comity. Id. at 1183-
1193 (act of state); 1199-1209 (international comity). It also
held that the ATCA did not require exhaustion. Id. at 1132-
1139.
Prior to the dismissal, the plaintiffs sought leave to file an
amended complaint. The district court denied their motion in
the same judgment dismissing the complaint, finding that any
such amendment would be futile.
D. Purported Change in the PNG Government’s
Position on the Litigation Since the District Court’s
Decision
The plaintiffs have asked that we take judicial notice of evi-
dence suggesting that the PNG government no longer opposes
the pursuit of this litigation because of a change in administra-
tion. In support of this claim, they offer:
1) A statement made on the parliament floor by Sir Michael
Somare, the Prime Minister of PNG, that “[i]n my view . . .
this is a litigation that has nothing to do with the United States
Government or any investors . . . . Let the case proceed.”
2) A letter dated February 6, 2003 from Joshua Kalinoe,
Chief Secretary to the PNG Government, stating that “[w]hilst
the complainants [in this case] are exercising their rights as
citizens of [PNG], the Government does not support nor deny
the constitutional rights of the citizens from taking whatever
action they deem necessary.”
SAREI v. RIO TINTO 8947
3) A second letter from Kalinoe, dated March 30, 2005,
reaffirming the position taken in his 2003 letter, stating, “The
government is not a party to this case. Accordingly, it does
not see the case presently before the courts affecting diplo-
matic and bilateral relations between our two countries nor
does it see it affecting the peace process on the island of Bou-
gainville.”
4) A letter to the State Department dated January 8, 2005
from John Momis, the Interim Bougainville Provincial Gover-
nor, “urg[ing] the Government of the United States to support
the Prime Minister’s position to permit the case to proceed in
the courts of America.”
II. DISCUSSION
A. Subject Matter Jurisdiction
The district court held that the plaintiffs had properly
alleged claims under the ATCA against Rio Tinto for viola-
tions of the laws of war, for crimes against humanity, for
racial discrimination and for violations of the United Nations
Convention on the Law of the Sea, and that Rio Tinto could
be held liable for some actions of the PNG military. The dis-
trict court also held that plaintiffs had failed to state ATCA
claims for violations of the “right to life and health” and for
environmental harm under the principle of “sustainable devel-
opment.” Neither party has expressly appealed these holdings,
although Rio Tinto has noted its disagreement with the district
court’s failure to dismiss all claims on subject matter jurisdic-
tion grounds.
Lack of subject matter jurisdiction is not waived by failure
to object and may be raised at any time in the proceedings.
See, e.g., United States v. Ceja-Prado, 333 F.3d 1046, 1049
(9th Cir. 2003). Further, it is our responsibility as a court of
limited jurisdiction to ensure that we have subject matter
8948 SAREI v. RIO TINTO
jurisdiction before proceeding further. Allstate Ins. Co. v.
Hughes, 358 F.3d 1089, 1093 (9th Cir. 2004).3
[1] We withdrew submission in this appeal to wait for the
Supreme Court’s opinion in Sosa v. Alvarez-Machain, 542
U.S. 692 (2004), which we anticipated would clarify whether
the plaintiffs’ claims were cognizable under the ATCA. See
Order Filed Dec. 10, 2003. In Sosa, the Supreme Court held
that “courts should require any [ATCA] claim based on the
present-day law of nations to rest on a norm of international
character accepted by the civilized world and defined with a
specificity comparable to the features of the 18th-century par-
adigm[ ]” causes of action for “offenses against ambassadors,
violations of safe conduct . . . [and] piracy.” Id. at 725, 720
(internal citations omitted).4 In doing so, it ratified the view
of ATCA jurisdiction derived by the district court from Ninth
Circuit precedent and applied in this case: “In evaluating
plaintiffs’ ATCA claims, therefore, the court must consider
. . . whether they identify a specific, universal and obligatory
norm of international law.” Sarei, 221 F. Supp. 2d at 1132.
See also In re Estate of Ferdinand Marcos, Human Rights
Litig., 25 F.3d 1467, 1475 (9th Cir. 1994) (stating that the
ATCA “creates a cause of action for violations of specific,
universal and obligatory international human rights standards
which confer fundamental rights upon all people vis-a-vis
their own governments.”) (internal citations and quotations
omitted). The settled principles of law that governed the dis-
trict court’s analysis therefore remain sound post-Sosa. See
3
If we were affirming the district court’s dismissal on justiciability
grounds, we could avoid this issue, as there is no violation of “the rule that
a federal court may not hypothesize subject-matter jurisdiction for the pur-
pose of deciding the merits” if the court affirms the district court without
reaching the merits. Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1042
n. 3 (9th Cir. 1999) (en banc). However, because we reverse the district
court’s dismissal, we must ensure that jurisdiction lies.
4
The Supreme Court ultimately concluded that under this standard, the
petitioner’s claim for arbitrary arrest and detention was not cognizable
under the ATCA. Sosa, 542 U.S. at 737-38.
SAREI v. RIO TINTO 8949
Sosa, 542 U.S. at 748 (Scalia, J., concurring in part, concur-
ring in the judgment and dissenting in part) (“[T]he verbal
formula . . . applied [by the Ninth Circuit to determine
whether ATCA jurisdiction lies] is the same verbal formula
that the Court explicitly endorses.”).
[2] We further agree with the district court’s conclusion
that the plaintiffs’ claims for war crimes, violations of the
laws of war, racial discrimination and for violations of the
UNCLOS all implicate “specific, universal and obligatory
norm[s] of international law” that properly form the basis for
ATCA claims, Sarei, 221 F. Supp. 2d at 1132, and that
Sosa’s gloss on this standard does not undermine the district
court’s reasoning. All of the plaintiffs’ remaining claims, with
the exception of the UNCLOS claim, assert jus cogens viola-
tions that form the least controversial core of modern day
ATCA jurisdiction. See, e.g., Sosa, 542 U.S. at 729-30
(endorsing approach of courts applying the ATCA to settled
violations of the law of nations); Kadic v. Karadzic, 70 F.3d
232, 243 (2d Cir. 1995) (“The District Court has jurisdiction
pursuant to the Alien Tort Act over appellants’ claims of war
crimes and other violations of international humanitarian
law.”).
[3] As for the UNCLOS claim, the treaty has been ratified
by at least 149 nations, which is sufficient for it to codify cus-
tomary international law that can provide the basis of an
ATCA claim. See United States v. State of Alaska, 503 U.S.
569, 588 n.10 (“The United States . . . has recognized that [the
UNCLOS’s] baseline provisions reflect customary interna-
tional law.”); Lori F. Damrosch et al., International Law:
Cases and Materials (4th ed. 2001) at 1386 (most provisions
of the UNCLOS “are clearly established customary law of the
sea”).
[4] Another potential jurisdictional complication is the
plaintiffs’ efforts to hold Rio Tinto liable under theories of
vicarious liability for alleged war crimes and crimes against
8950 SAREI v. RIO TINTO
humanity committed at its behest by the PNG army. A predi-
cate question is whether, post-Sosa, claims for vicarious lia-
bility for violations of jus cogens norms are actionable under
the ATCA. We conclude that they are. Courts applying the
ATCA draw on federal common law, and there are well-
settled theories of vicarious liability under federal common
law. See, e.g., Moriarty v. Glueckert Funeral Home, Ltd., 155
F.3d 859, 866 n. 15 (7th Cir. 1998) (deriving federal common
law agency liability principles from the Restatement of
Agency).5
[5] The second question is whether the plaintiffs have suffi-
ciently alleged Rio Tinto’s liability for the PNG military’s
alleged war crimes. We agree with the district court that they
have. The plaintiffs allege, for example, that “Rio Tinto knew
that its wishes were taken as commands by the PNG govern-
ment and Rio intended that its comments would spur the PNG
forces into action,” that “Rio . . . understood that . . . [i]f Rio
did not direct and/or encourage a military response . . . none
would have been initiated,” and similar allegations that Rio
Tinto officials exercised control over the behavior of PNG
forces with regard to the conflict around the mine. 221 F.
Supp. 2d at 1148. Based on these allegations, the district court
concluded that “plaintiffs have adequately alleged that PNG’s
actions are ‘fairly attributable’ to Rio Tinto,” and that “Rio
Tinto ‘controlled’ [PNG’s] actions . . . .” Sarei, 221 F. Supp.
2d at 1148. Taking the allegations of Rio Tinto’s control over
PNG forces as true, we agree with the district court that the
5
We further note that violations of the law of nations have always
encompassed vicarious liability. See 1 Op. Att’y Gen. 57, 59 (1795)
(explaining that “jurisdiction [has been] expressly given to [United States]
courts in all cases where an alien sues for a tort only, in violation of the
laws of nations, or a treaty of the United States” and noting that “those
who commit[ ], aid[ ], or abet[ ] hostilities” have “render[ed] themselves
liable to punishment under the laws of nations”). Indeed, Congress passed
a specific statute criminalizing aiding and abetting for one of the “para-
digm” ATCA causes of action, piracy. See Act of April 30, 1790, ch. 9
§ 10, 1 Stat. 114 (criminalizing aiding and abetting piracy).
SAREI v. RIO TINTO 8951
plaintiffs have adequately alleged vicarious liability under the
ATCA. Based on the plaintiffs’ uncontested (for our pur-
poses) allegations, we are satisfied that we have jurisdiction
to proceed.6
B. The Political Question Doctrine
The district court dismissed all of the plaintiffs’ claims on
the ground that they presented nonjusticiable political ques-
tions. We have recently observed that this inquiry “proceeds
from the age-old observation of Chief Justice Marshall that
‘questions, in their nature political, or which are, by the con-
stitution and laws, submitted to the executive, can never be
made in this court.’ ” Alperin v. Vatican Bank, 410 F.3d 532,
544 (9th Cir. 2005) (quoting Marbury v. Madison, 5 U.S. 137,
170 (1803)).
[6] Courts considering the political question doctrine begin
with the Supreme Court’s elaboration of the appropriate anal-
ysis in Baker v. Carr, 369 U.S. 186 (1962), where the Court
described the doctrine as a function of the separation of pow-
ers, and set forth six factors that require the dismissal of a suit
under the political question doctrine if any one of them is “in-
extricable from the case at bar.” 369 U.S. at 217. Four are at
issue here:
1. “a textually demonstrable constitutional commit-
ment of the issue to a coordinate political depart-
ment”;
* * *
4. “the impossibility of a court’s undertaking inde-
6
We do not reach the separate question, which has not been presented
to us on appeal, of what standard must govern such determinations of lia-
bility. Whether and how the plaintiffs will be able to prove their dramatic
allegations are questions for another day.
8952 SAREI v. RIO TINTO
pendent resolution without expressing lack of the
respect due coordinate branches of government”;
5. “an unusual need for unquestioning adherence to
a political decision already made”; or
6. “the potentiality of embarrassment from multifar-
ious pronouncements by various departments on one
question.”
Id.7 In the context of foreign relations, “[n]ot only does reso-
lution of such issues frequently turn on standards that defy
judicial application, or involve the exercise of a discretion
demonstrably committed to the executive or legislature; but
many such questions uniquely demand single-voiced state-
ment of the Government’s views.” Id. at 211.
The district court dismissed all of the plaintiffs’ claims
because it concluded that the fourth and sixth Baker factors
were present. Sarei, 221 F. Supp. 2d at 1197-98. Rio Tinto
asserts that the first and fifth Baker factors are also present;
the plaintiffs claim that none are present. We will address
each in turn.
1. Factor One: Constitutional Commitment to
Another Branch
[7] In Alvarez-Machain v. United States, 331 F.3d 604 (9th
Cir. 2003), rev’d on other grounds, Sosa v. Alvarez-Machain,
542 U.S. 692 (2004), we adopted the Second Circuit’s holding
that the resolution of claims brought under the ATCA has
been constitutionally entrusted to the judiciary. Alvarez-
Machain, 331 F.3d at 615 n.7 (citing and quoting Kadic, 70
F.3d at 249 (“The department to whom this [tort suit] has
been constitutionally committed is none other than our own
7
We do not address the second and third Baker factors, as Rio Tinto
does not contend they are applicable.
SAREI v. RIO TINTO 8953
— the Judiciary.”)); see also Klinghoffer v. S.N.C. Achille
Lauro, 937 F.2d 44, 48 (2d Cir. 1991) (same); Tel-Oren v.
Libyan Arab Republic, 726 F.2d 774, 797 (D.C. Cir. 1984)
(Edwards, J., concurring) (“[I]n implementing section 1350,
courts merely carry out the existing view of the legislature
that federal courts should entertain certain actions that impli-
cate the law of nations.”); Restatement (Third) of the Foreign
Relations Law of the United States § 111(2) (1987) [hereinaf-
ter Foreign Relations Law Restatement] (cases arising under
international law are within the judicial power of the United
States).
[8] When the Supreme Court reversed our en banc decision
in Sosa, it did not question our conclusion that ATCA suits
are constitutionally entrusted to the judiciary; it simply deter-
mined that the specific claim at issue was not cognizable
under the ATCA. To the extent that Rio Tinto seeks to argue
that the first Baker factor is satisfied as to all ATCA claims,
or relies on a logic that itself derives from such a view, the
argument fails. Given that plaintiffs have properly alleged
cognizable ATCA claims, it is not tenable to insist that the
claims themselves are not entrusted to the judiciary.
2. Factors Four, Five and Six: Interference With A
Coordinate Branch
The fourth, fifth and sixth Baker factors are relevant in an
ATCA case “if judicial resolution of a question would contra-
dict prior decisions taken by a political branch in those limited
contexts where such contradiction would seriously interfere
with important governmental interests.” Kadic, 70 F.3d at
249. To determine whether these factors are present, we must
first decide how much weight to give the State Department’s
statement of interest, which provided the basis for the district
court’s determination that the fourth and six factors were
present.
8954 SAREI v. RIO TINTO
a. Treatment of SOIs by Other Courts
[9] The Second Circuit has stated that “an assertion of the
political question doctrine by the Executive Branch, entitled
to respectful consideration, would not necessarily preclude
adjudication.” Kadic, 70 F.3d at 250.8 As for exactly how
much weight to give such statements, two Second Circuit
cases suggest that the executive statements should be
reviewed for “arbitrariness.” In National Petrochemical Co.
of Iran v. M/T Stolt Sheaf, 860 F.2d 551, 555 (2d Cir. 1988),
the court found there was “no indication that [the SOI] is an
arbitrary or ad hoc directive.” Following Petrochemical, the
court in Matimak Trading Co. v. Khalily, 118 F.3d 76 (2d Cir.
1997), abrogated on other grounds by J.P. Morgan Chase
Bank v. Traffic Stream, 536 U.S. 88 (2002), recognized that
an “unexplained change in stance . . . might under different
circumstances require further inquiry of its ulterior motives,”
but that “no reason is apparent . . . for refusing to defer to the
8
As discussed infra, the act of state doctrine also involves a determina-
tion of the political repercussions of judicial action, and in that context
courts have held that statements of interest, although entitled to respect,
are not conclusive. See Allied Bank Int’l v. Banco Credito Agricola de
Cartago, 757 F.2d 516, 521 n.2 (2d Cir. 1985) (“This estimation [of the
applicability of the act of state doctrine] may be guided but not controlled
by the position, if any, articulated by the executive as to the applicability
vel non of the doctrine to a particular set of facts. Whether to invoke the
act of state doctrine is ultimately and always a judicial question.”); Envi-
ronmental Tectonics v. W.S. Kirkpatrick, Inc., 847 F.2d 1052, 1062 (3d
Cir. 1988) (holding that the State Department’s legal conclusions “are not
controlling on the courts,” but that its “factual assessment of whether ful-
fillment of its responsibilities will be prejudiced by the course of civil liti-
gation is entitled to substantial respect”). The Supreme Court also recently
stated in the context of assertions of foreign sovereign immunity that
“should the State Department choose to express its opinion on the implica-
tions of asserting jurisdiction over particular petitioners in connection with
their alleged conduct, the opinion might well be entitled to deference as
the considered judgment of the Executive on a particular question of for-
eign policy.” Republic of Austria v. Altmann, 541 U.S. 677, 702 (2004)
(emphasis in original omitted).
SAREI v. RIO TINTO 8955
State Department in this case.” 118 F.3d at 82 (citing
Petrochemical for proposition that “court might boggle at ‘ad
hoc, pro hac vice’ directive of the government”).
[10] More recently, in Ungaro-Benages v. Dresdner Bank
AG, the Eleventh Circuit found an ATCA suit justiciable
despite a SOI from the government disapproving of the suit,
and noted, “This statement of interest from the executive is
entitled to deference . . . . A statement of nation interest alone,
however, does not take the present litigation outside of the
competence of the judiciary.” 379 F.3d 1227, 1236 (11th Cir.
2004).9 And we recently stated that if “the State Department
express[es] a view [on whether a case presents a political
question,] that fact would certainly weigh” in the court’s
determination. Vatican Bank, 410 F.3d at 556.
The Supreme Court in Sosa stated that “there is a strong
argument that federal courts should give serious weight to the
Executive Branch’s view of the case’s impact on foreign poli-
cy,” Sosa, 542 U.S. at 733 n.21, and prior to Sosa, some
courts found a nonjusticiable political question where the
State Department had indicated that a judicial decision would
impinge upon important foreign policy interests. See, e.g., 767
Third Ave. Assocs. v. Consulate General (Yugo.), 218 F.3d
152, 160-61 (2d Cir. 2000); Occidental of Umm al Qaywayn,
Inc. v. Certain Cargo of Petroleum, 577 F.2d 1196, 1204 (5th
Cir. 1978); see also In re Nazi Era Cases Against German
Defs. Litig., 129 F. Supp. 2d 370, 380-83 (D.N.J. 2001);
Burger-Fischer v. Degussa AG, 65 F. Supp. 2d 248, 281-85
(D.N.J. 1999).
[11] Guided by separation of powers principles, as well as
the cases discussed above, we conclude that although we will
give the view in the SOI “serious weight,” Sosa, 542 U.S. at
733 n.21, it is not controlling on our determination of whether
9
In Ungaro-Benages, the court ultimately dismissed the claims on com-
ity grounds. Id. at 1240.
8956 SAREI v. RIO TINTO
the fourth through sixth Baker factors are present. Ultimately,
it is our responsibility to determine whether a political ques-
tion is present, rather than to dismiss on that ground simply
because the Executive Branch expresses some hesitancy about
a case proceeding.
b. The 2001 State Department SOI in this Case
Although it is a close question, we conclude that the SOI
submitted in this case, even when given serious weight, does
not establish that any of the final three Baker factors is “inex-
tricable from the case,” Baker, 369 U.S. at 217.
The SOI begins by noting that the State Department has not
been “invited” to comment on the applicability of the political
question doctrine itself. It next states that “[i]n our judgment,
continued adjudication of the claims . . . would risk a poten-
tially serious adverse impact on the peace process, and hence
on the conduct of our foreign relations.”10 The SOI concludes
with the observation that “[t]he Government of Papua New
Guinea . . . has stated its objection to these proceedings in the
strongest terms,” and that PNG “perceives the potential
impact of this litigation on U.S.-PNG relations, and wider
regional interests, to be ‘very grave.’ ”
[12] We first observe that without the SOI, there would be
little reason to dismiss this case on political question grounds,
and therefore that the SOI must carry the primary burden of
establishing a political question. There is no independent rea-
son why the claims presented to us raise any warning flags as
infringing on the prerogatives of our Executive Branch. As
such, these claims can be distinguished from cases in which
the claims by their very nature present political questions
requiring dismissal. See, e.g., Vatican Bank, 410 F.3d at 562
(identifying nonjusticiable political question presented by
10
The SOI adds that “[c]ountries participating in the multilateral peace
process have raised this concern” as well.
SAREI v. RIO TINTO 8957
claims regarding alleged war crimes of an enemy of the
United States committed during World War II). The Supreme
Court has been clear that “it is error to suppose that every case
or controversy which touches foreign relations lies beyond
judicial cognizance,” and that the doctrine “is one of ‘political
questions,’ not of ‘political cases’.” Baker, 369 U.S. at 211,
217. Without the SOI, this case presents claims that relate to
a foreign conflict in which the United States had little
involvement (so far as the record demonstrates), and therefore
that merely “touch[ ] foreign relations.” Id. at 211.11
[13] When we take the SOI into consideration and give it
“serious weight,” we still conclude that a political question is
not presented. Even if the continued adjudication of this case
does present some risk to the Bougainville peace process, that
is not sufficient to implicate the final three Baker factors,
which require “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 multifari-
ous pronouncements by various departments on one ques-
tion.” Baker, 369 U.S. at 217. The State Department explicitly
did not request that we dismiss this suit on political question
grounds, and we are confident that proceeding does not
express any disrespect for the executive, even if it would pre-
fer that the suit disappear.12 Nor do we see any “unusual need
for unquestioning adherence” to the SOI’s nonspecific invo-
cations of risks to the peace process. And finally, given the
guarded nature of the SOI, we see no “embarrassment” that
11
We address below the separate question of whether the act of state or
international comity doctrines warrant dismissal due to a balancing of the
interests of PNG and the United States.
12
We need not determine whether a refusal to honor an explicit request
to dismiss would constitute sufficient “disrespect” to warrant dismissal
under this factor, although we note the Second Circuit’s conclusion in
Kadic that it would not. Kadic, 70 F.3d at 250.
8958 SAREI v. RIO TINTO
would follow from fulfilling our independent duty to deter-
mine whether the case should proceed. We are mindful of
Sosa’s instruction to give “serious weight” to the views of the
executive, but we cannot uphold the dismissal of this lawsuit
solely on the basis of the SOI.13
Our holding today is consistent with our recent dismissal of
ATCA war crimes claims in Vatican Bank as presenting non-
13
The plaintiffs have submitted recent letters from members of PNG’s
government urging that the suit will not harm or affect the ongoing Boua-
gainville peace process. The Chief Secretary to the Government of PNG,
Joseph Kalinoe, wrote to the United States Ambassador to PNG on March
30, 2005 that “the [PNG Government] does not see the case presently
before the U.S. courts in the US affecting diplomatic and bilateral rela-
tions between our two countries nor does it see it affecting the peace pro-
cess on the island of Bougainville.” And on January 8, 2005, John Momis,
the Interim Bougainville Provincial Governor, wrote to the State Depart-
ment’s legal advisor under whose name the SOI was written, “urg[ing] the
Government of the United States to support the Prime Minister’s position
to permit the case to proceed in the courts of America, and to explain that
the people of Bougainville strongly desire the case to proceed in America.
. . .” Momis’ letter includes detail about the current state of the Bougain-
ville peace process, and about how “the litigation has not hindered or in
any way adversely affected the peace negotiations.” Indeed, the letter adds
that “the Sarei litigation has helped facilitate the process as it is viewed
as another source of rectifying the historic injustices perpetrated against
the people of Bougainville.” Finally, the letter asserts that “the only way
that the litigation will impact [U.S./PNG] foreign relations is if the litiga-
tion is discontinued.”
Whether these letters are properly authenticated is in dispute. But if they
are authentic and their authors accurately describe the current state of
affairs in PNG, that would seriously undercut the State Department’s con-
cerns expressed in its November 5, 2001 SOI — which itself depended on
assessments by local government officials, including Joseph Kalinoe’s
predecessor as Chief Secretary to the Government of PNG. For whatever
reason, the State Department has declined to update the SOI. Under these
circumstances, we do not rely on the letters’ substantive representations.
But the letters, by suggesting there exists today a different reality in PNG
from that portrayed in the SOI, illustrate why it is inappropriate to give the
SOI final and conclusive weight as establishing a political question under
Baker.
SAREI v. RIO TINTO 8959
justiciable political questions. There, a proposed class of
Holocaust survivors sued the Vatican Bank (a financial insti-
tution connected to the Vatican) for its complicity in various
war crimes of the Nazi-sympathizing Ustasha puppet regime
in Croatia, including Vatican Bank’s profiting from the
Ustasha regime’s theft of the class’s property. 410 F.3d at
538. We concluded that “the claims for conversion, unjust
enrichment, restitution, and an accounting with respect to lost
and looted property are not committed to the political branch-
es,” whereas “the broad allegations tied to the Vatican Bank’s
alleged assistance to the war objectives of the Ustasha, includ-
ing the slave labor claims, which essentially call on us to
make a retroactive political judgment as to the conduct of the
war . . . are, by nature, political questions.” Id. at 548. We dis-
tinguished Kadic, another war crimes case, in which the Sec-
ond Circuit had declined to find a political question: “[T]he
claims in Kadic focused on the acts of a single individual dur-
ing a localized conflict rather than asking the court to under-
take the complex calculus of assigning fault for actions taken
by a foreign regime during the morass of a world war.” Id. at
562.14
We do not understand Vatican Bank as foreclosing the
plaintiffs’ claims that relate to the PNG regime’s alleged war
crimes, but instead read its holding to apply only to the nar-
rower category of war crimes committed by enemies of the
United States. Considering such claims would necessarily
14
We also recalled Baker’s warning against “sweeping statements that
imply all questions involving foreign relations are political ones” and its
command to courts to undertake a “case-by-case analysis to determine
whether the question posed lies beyond judicial cognizance.” 410 F.3d at
544-45. We characterized the dissent, which “would have the political
question doctrine remove from our courts all matters that fall by their con-
stitutional DNA into th[e] sphere of conduct involving foreign relations,”
id. at 547 (internal quotations omitted), as setting forth “an over-inclusive
approach [that] threatens to sweep all cases touching foreign relations
beyond the purview of the courts — a practice warned against in Baker.”
Id.
8960 SAREI v. RIO TINTO
require us to review the acts of an enemy of the United States,
which would risk creating a conflict with the steps the United
States actually chose to take in prosecuting that war. See id.
at 560 (expressing unwillingness to “intrude unduly on certain
policy choices and value judgments that are constitutionally
committed to the political branches . . . for we do not and can-
not know why the Allies made the policy choice not to prose-
cute the Ustasha and the Vatican Bank.”) (internal citations
and quotation marks omitted).
Reading Vatican Bank to preclude any ATCA war crimes
claims would work a major, and inadvisable, shift in our
ATCA jurisprudence. It would create a clear circuit split with
Kadic. And it would contradict Sosa, which confirmed the
view of the ATCA contained in Kadic and other cases when
it stated that “[f]or two centuries we have affirmed that the
domestic law of the United States recognizes the law of
nations. It would take some explaining to say now that federal
courts must avert their gaze entirely from any international
norm intended to protect individuals.” Sosa, 542 U.S. at 729-
30 (internal citations omitted).
[14] We hold that none of the plaintiffs’ claims present
nonjusticiable political questions. The district court’s dis-
missal on that ground must be reversed.
C. The Act of State Doctrine
[15] The act of state doctrine prevents U.S. courts from
inquiring into the validity of the public acts of a recognized
sovereign power committed within its own territory. See
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 401
(1964); Timberlane Lumber Co. v. Bank of America, 549 F.2d
597, 605-607 (9th Cir. 1977) (recounting history of doctrine).
The doctrine reflects the concern that the judiciary, by ques-
tioning the validity of sovereign acts taken by foreign states,
may interfere with the executive’s conduct of American for-
eign policy. W.S. Kirkpatrick & Co. v. Environmental Tecton-
SAREI v. RIO TINTO 8961
ics Corp., 493 U.S. 400, 404 (1990). As a result, an action
may be barred if (1) there is an “official act of a foreign sov-
ereign performed within its own territory”; and (2) “the relief
sought or the defense interposed [in the action would require]
a court in the United States to declare invalid the [foreign sov-
ereign’s] official act.” Id. at 405; see also Credit Suisse v.
United States Dist. Court for Cent. Dist. of Cal., 130 F.3d
1342, 1346 (9th Cir. 1997).
[16] If these two elements are present, we may still choose
not to apply the act of state doctrine where the policies under-
lying the doctrine militate against its application. The
Supreme Court discussed three such policies in Sabbatino:
[1] [T]he greater the degree of codification or con-
sensus concerning a particular area of international
law, the more appropriate it is for the judiciary to
render decisions regarding it . . . . [2] [T]he less
important the implications of an issue are for our for-
eign relations, the weaker the justification for exclu-
sivity in the political branches. [3] The balance of
relevant considerations may also be shifted if the
government which perpetrated the challenged act of
state is no longer in existence.
Sabbatino, 376 U.S. at 428.
The district court dismissed the racial discrimination and
UNCLOS claims under the act of state doctrine. Sarei, 221 F.
Supp. 2d at 1184-1193. The plaintiffs contend that the district
court erred, whereas Rio Tinto argues that the district court
should have dismissed the war crimes and violations of the
laws of war claims as well.15 The burden of proving acts of
15
Rio Tinto has not appealed the nondismissal of the war crimes and
violations of the laws of war claims under the act of state doctrine, but
argues against it only in response to the plaintiffs’ appeal as to the act of
state dismissals.
8962 SAREI v. RIO TINTO
state rests on Rio Tinto. Liu v. Republic of China, 892 F.2d
1419, 1432 (9th Cir. 1989) (citing Alfred Dunhill of London,
Inc. v. Republic of Cuba, 425 U.S. 682, 694-95 (1976);
Republic of Philippines v. Marcos, 862 F.2d 1355, 1361 (9th
Cir. 1988) (en banc)).
The plaintiffs allege that PNG acted “at Rio’s direction”
and that Rio Tinto and PNG “conspired to commit . . . viola-
tions of customary international law.” As a result, certain acts
of PNG are at issue, even if PNG is not a named defendant.
See, e.g., National Coalition Gov’t of Burma v. Unocal, Inc.,
176 F.R.D. 329, 352 (C.D. Cal. 1997). We must therefore first
determine whether these acts were “official.”
The district court reasoned that an official, noncommercial
act of state was implicated in the racial discrimination and
UNCLOS claims because
Rio Tinto conducted its mining activity pursuant to
an agreement between its subsidiary, Bougainville
Copper Limited, and the PNG Government . . . .
Because PNG entered into the agreement, and codi-
fied it . . . in order to exploit its natural resources, it
is clear that it was engaged in a “public and govern-
mental” as opposed to a “private and commercial”
function.
Sarei, 221 F. Supp. 2d at 1186 (citing cases).16
1. Racial Discrimination
[17] We disagree with the district court’s conclusion that
the alleged racial discrimination constituted an official act
which the act of state doctrine could insulate from scrutiny.
Acts of racial discrimination are violations of jus cogens
norms. See Siderman de Blake, 965 F.2d at 717 (noting that
16
The agreement is codified in the Bougainville Copper Agreement Act.
SAREI v. RIO TINTO 8963
the Foreign Relations Law Restatement “identif[ies] jus
cogens norms prohibiting . . . systematic racial discrimina-
tion”). The complaint alleges “systematic racial discrimina-
tion” and “policies of racial discrimination” in Rio Tinto’s
operation of the mine, and that race was a motivating factor
in several of the other alleged abuses. These allegations,
which must be accepted as true at this stage, constitute jus
cogens violations. Therefore, because “[i]nternational law
does not recognize an act that violates jus cogens as a sover-
eign act,” Siderman de Blake, 965 F.2d at 718, the alleged
acts of racial discrimination cannot constitute official sover-
eign acts, and the district court erred in dismissing these
claims under the act of state doctrine.
2. UNCLOS Violations
We agree with the district court that PNG’s actions taken
pursuant to the Copper Act to exploit its own natural
resources are “public acts of the sovereign.” See In re Estate
of Marcos Human Rights Litig., 978 F.2d 493, 498 n.10 (9th
Cir. 1992). Further, although the UNCLOS codifies norms of
customary international law, see supra Section II.A, it is not
yet clear whether “the international community recognizes the
norm[s] as one[s] from which no derogation is permitted.”
Siderman de Blake, 965 F.2d at 715 (internal quotations omit-
ted). Without more, we cannot conclude that the UNCLOS
norms are also jus cogens norms. Therefore, although the
alleged UNCLOS violations represent violations of interna-
tional law, the UNCLOS provisions at issue do not yet have
a status that would prevent PNG’s acts from simultaneously
constituting official sovereign acts. We further agree with the
district court that to adjudicate the UNCLOS claim would
require a court to judge the validity of these official acts.
Having found that the alleged UNCLOS violations consti-
tuted official sovereign acts, the district court turned to Sab-
batino to determine whether the act of state doctrine barred
any further consideration. See Sabbatino, 376 U.S. at 428.
8964 SAREI v. RIO TINTO
The district court’s application of the Sabbatino factors relied
in part on the SOI’s assertion regarding the potential impact
of this case on United States foreign relations. See Sabbatino,
376 U.S. at 428 (identifying “implications . . . for our foreign
relations” as one factor to consider in act of state analysis).
[18] Because we have rejected the district court’s reliance
on the SOI in the context of the political question doctrine, we
consider it prudent to allow the district court to revisit its reli-
ance on the SOI in the act of state context. We have con-
cluded that the SOI, even when given “serious weight,” does
not establish — on its own — the presence of any of the
Baker factors. However, the act of state analysis, while
related, is not identical to the political question analysis. A
consideration of foreign policy concerns is one of several
Sabbatino factors, and the SOI’s foreign policy concerns are
entitled to consideration, but only as one part of that analysis.
Moreover, further factual development may be necessary to
determine whether “the government which perpetrated the
challenged act of state is [still] in existence.” Sabbatino, 376
U.S. at 428. We therefore vacate the district court’s UNCLOS
act of state dismissal for reconsideration in light of our analy-
sis of the SOI.17
17
As noted above, see supra note 15, Rio Tinto has waived any appeal
of the district court’s failure to dismiss the war crimes and violations of
the laws of war claims on act of state grounds. We note, however, that the
act of state doctrine has been interpreted to apply only to legitimate acts
of warfare. See, e.g., Linder v. Portocarrero, 963 F.2d 332, 336 (11th Cir.
1992) (holding that “there is no foreign civil war exception to the right to
sue for tortious conduct that violates the fundamental norms of the cus-
tomary laws of war”); see also Flatow v. Islamic Republic of Iran, 999 F.
Supp. 1, 24 (D.D.C. 1998) (concluding that political assassinations “are
not valid acts of state of the type which bar consideration of this case”).
Because such conduct violates jus cogens norms, it does not constitute an
official act. See, e.g., Siderman de Blake, 965 F.2d at 715-18.
SAREI v. RIO TINTO 8965
D. International Comity
Under the international comity doctrine, courts sometimes
defer to the laws or interests of a foreign country and decline
to exercise jurisdiction that is otherwise properly asserted.
See, e.g., Societe Nationale Industrielle Aerospatiale v.
United States District Court for the Southern District of Iowa,
482 U.S. 522, 544 n.27 (1987) (“Comity refers to the spirit of
cooperation in which a domestic tribunal approaches the reso-
lution of cases touching the laws and interests of other sover-
eign states.”); In re Simon (Hong Kong & Shanghai Banking
Corp. v. Simon), 153 F.3d 991, 998 (9th Cir. 1998) (citing
Hilton v. Guyot, 159 U.S. 113, 163-64 (1895)). See also Sosa,
542 U.S. at 761 (Breyer, J., concurring) (stressing that it is
important for courts to ask “whether the exercise of jurisdic-
tion under the AT[CA] is consistent with those notions of
comity that lead each nation to respect the sovereign rights of
other nations by limiting the reach of its laws and their
enforcement”).
“Declining to decide a question of law on the basis of inter-
national comity is a form of abstention, and we review a dis-
trict court’s decision to abstain on international comity
grounds for abuse of discretion.” JP Morgan Chase Bank v.
Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 422 (2nd
Cir. 2005); see also Remington Rand Corporation-Delaware
v. Business Systems, Inc., 830 F.2d 1260, 1266 (3d Cir. 1987)
(“Because the extension or denial of comity is discretionary,
we review this issue by the abuse of discretion standard.”).18
The district court dismissed the plaintiffs’ racial discrimina-
18
Our circuit has not explicitly held that district court dismissals or
refusals to dismiss on the ground of international comity are reviewed for
abuse of discretion, although it has settled that comity decisions in general
are reviewed under that standard. See, e.g., Stock West Corp. v. Taylor,
964 F.2d 912, 917-18 (9th Cir. 1992) (regarding comity owed to state
courts). We join our sister circuits in clarifying that this abuse of discre-
tion review applies to dismissals on grounds of international comity as
well.
8966 SAREI v. RIO TINTO
tion and UNCLOS claims under the comity doctrine. Sarei,
221 F. Supp. 2d at 1207. The plaintiffs contest this finding,
whereas Rio Tinto asserts that the district court should have
dismissed the war crimes and violations of the laws of war
claims under this doctrine as well.19
As a threshold matter, the parties disagree as to whether the
district court applied the appropriate comity analysis. The
plaintiffs argue that this circuit has interpreted Supreme Court
precedent to require a predicate inquiry into whether a true
conflict of law exists. See In re Simon, 153 F.3d at 999 (citing
Hartford Fire Ins. Co. v. California, 509 U.S. 764, 798
(1993)) (limiting the application of the international comity
doctrine to cases in which “there is in fact a true conflict
between domestic and foreign law.”). Rio Tinto asserts that
we consider a conflict of law as only one of several factors.
The district court agreed with the plaintiffs, and assumed that
a conflict was a predicate requirement. See Sarei, 221 F.
Supp. 2d at 1200-01. We agree with the district court, which
followed Simon’s clear statement.20
The district court based its finding of a conflict on PNG’s
Compensation (Prohibition of Foreign Proceedings) Act of
1995 (“Compensation Act”), which “prohibit[s] the taking or
pursuing in foreign courts of legal proceedings in relation to
compensation claims arising from mining projects and petro-
leum projects in Papua New Guinea.” Sarei, 221 F. Supp. 2d
at 1201.21 The district court reasoned that a conflict existed
19
Once again, Rio Tinto failed to appeal the district court’s comity rul-
ing, confining its arguments against it to its response to plaintiffs’ appeal.
See supra notes 15 & 17.
20
We also note that whether the presence of a conflict is a predicate
inquiry, or simply one factor in a multipart inquiry, is academic here, as
the district court did not abuse its discretion in identifying a conflict.
21
A “compensation claim” is defined to include any claim “in connec-
tion with” a mining project “which relates to or concerns” environmental
harm, takings, or, more broadly “extends to any other matter” or “seeks
the payment of damages, compensation or any other form of monetary
relief.”
SAREI v. RIO TINTO 8967
because, “[w]hile the ATCA vests jurisdiction in federal
courts to hear plaintiffs’ claims, the Compensation Act pro-
hibits plaintiffs from filing the claims elsewhere than in
PNG.” Id. at 1201. This conclusion was not an abuse of dis-
cretion.
Given a conflict of laws, courts then look to the nonexhaus-
tive standards set forth in Foreign Relations Law Restatement
§ 403(2) (“Section 403(2)”):
Whether exercise of jurisdiction over a person or
activity is unreasonable is determined by evaluating
all relevant factors, including, where appropriate:
(a) the link of the activity to the territory
of the regulating state, i.e., the extent to
which the activity takes place within the
territory, or has substantial, direct, and fore-
seeable effect upon or in the territory;
(b) the connections, such as nationality,
residence, or economic activity, between
the regulating state and the person princi-
pally responsible for the activity to be regu-
lated, or between that state and those whom
the regulation is designed to protect;
(c) the character of the activity to be regu-
lated, the importance of regulation to the
regulating state, the extent to which other
states regulate such activities, and the
degree to which the desirability of such reg-
ulation is generally accepted;
(d) the existence of justified expectations
that might be protected or hurt by the regu-
lation;
8968 SAREI v. RIO TINTO
(e) the importance of the regulation to the
international political, legal, or economic
system;
(f) the extent to which the regulation is
consistent with the traditions of the interna-
tional system;
(g) the extent to which another state may
have an interest in regulating the activity;
and
(h) the likelihood of conflict with regula-
tion by another state.
See also cmt. b (explaining that the list of considerations in
Section 403(2) is not exhaustive and “[n]ot all considerations
have the same importance in all situations; the weight to be
given to any particular factor depends upon the circum-
stances”).
The district court concluded on the basis of the State
Department’s SOI that it would best serve the United States’
interests to decline jurisdiction. See Sarei, 221 F. Supp. 2d at
1205. In addition, it found that the first two Restatement fac-
tors weighed in favor of declining jurisdiction on the racial
discrimination and environmental harm claims because (1) all
the conduct complained of occurred in PNG; (2) all the plain-
tiffs but the lead plaintiff, Sarei, are PNG residents; and (3)
Rio Tinto, although not a PNG resident, has conducted signif-
icant business in, and has strong ties to, PNG. Id. at 1206.
Finally, it concluded that an additional factor counseled dis-
missing the environmental harms because such claims arise
out of PNG’s exploitation of its natural resources. See id.
[19] The district court acted within its discretion in deter-
mining that it should decline to hear these claims on comity
grounds. However, as with the district court’s act of state dis-
SAREI v. RIO TINTO 8969
missal of the UNCLOS claim, because we have rejected the
district court’s reliance on the SOI in the context of the politi-
cal question doctrine, we again consider it prudent to allow
the district court to revisit its reliance on the SOI in the com-
ity context. Further factual development may also be war-
ranted to determine whether and how the Restatement factors
apply to these claims. We therefore vacate the district court’s
comity ruling for reconsideration in light of our analysis of
the SOI.22
E. It Would Not Be Appropriate At this Time to
Recognize an Exhaustion Requirement in the ATCA
The district court held that exhaustion of local remedies
was not required under the ATCA. Sarei, 221 F. Supp. 2d at
1139. It examined the text of the Torture Victims Protection
Act of 1991 (“TVPA”), Pub. L. No. 102-256, 106 Stat. 73
(1992) (codified at 28 U.S.C. § 1350, historical and statutory
notes), which expressly requires exhaustion, and determined
that the TVPA’s requirement did not mandate a similar one
for the ATCA. See Sarei, 221 F. Supp. 2d at 1132-38. The
court also rejected Rio Tinto’s contention that an exhaustion
requirement should be read into the ATCA because such
exhaustion is customary under international law. See id. at
1138-39. It concluded that the ATCA “is a creature of domes-
tic law,” and that the plain language of the statute did not
require exhaustion. Id. at 1139.
Rio Tinto’s cross-appeal urges that an exhaustion require-
ment should be read into the ATCA. Two international legal
jurists, Sir Ninian M. Stephen and Judge Stephen M. Schwe-
22
As with the act of state claims, Rio Tinto has failed to appeal the dis-
trict court’s ruling, but argues in response to the plaintiffs’ arguments that
the district court inappropriately failed to dismiss the war crimes and vio-
lations of the laws of war claims on comity grounds. Even if Rio Tinto had
not waived any appeal, the district court did not abuse its discretion in fail-
ing to dismiss these claims on comity grounds.
8970 SAREI v. RIO TINTO
bel, have filed an amicus brief supporting Rio Tinto’s posi-
tion.
The Supreme Court in Sosa hinted that it might be amena-
ble to recognizing an exhaustion requirement as implicit in
the ATCA:
This requirement of clear definition is not meant to
be the only principle limiting the availability of relief
in the federal courts for violations of customary
international law, though it disposes of this case. For
example, the European Commission argues as
amicus curiae that basic principles of international
law require that before asserting a claim in a foreign
forum, the claimant must have exhausted any reme-
dies available in the domestic legal system, and per-
haps in other fora such as international claims
tribunals. We would certainly consider this require-
ment in an appropriate case.
Sosa, 542 U.S. at 733 n.21 (internal citations omitted).
[20] Neither the Supreme Court nor any circuit court, how-
ever, has resolved the issue of whether the ATCA requires
exhaustion of local remedies. This circuit has sustained the
justiciability of ATCA claims, both before and after Sosa,
without requiring exhaustion. See Alperin v. Vatican Bank,
410 F.3d 532, 544-58 (9th Cir. 2005); In re Estate of Ferdi-
nand Marcos, Human Rights Litig., 25 F.3d 1467, 1474-76
(9th Cir. 1994). Recently, Judge Cudahy of the Seventh Cir-
cuit made these observations in an ATCA suit brought by
Nigerians against a Nigerian general for alleged torture during
the regime of a since-deposed military junta:
[I]ncorporating an implicit exhaustion requirement
in the ATCA would have something to recommend
it. Doing so would, among other things, bring the
Act into harmony with both the provisions of the
SAREI v. RIO TINTO 8971
TVPA (with which it is at least partially coextensive)
and with the acknowledged tenets of international
law. And while not directly applicable to the ATCA,
the TVPA scheme is surely persuasive since it dem-
onstrates that Congress not only assumed that the
exhaustion requirements imposed by customary
international law were discernible and effective in
themselves, but also that they should be reflected in
U.S. domestic law. Considerations of equity and
consistency also recommend this approach since oth-
erwise American victims of torture would be bound
by an exhaustion requirement under the TVPA and
foreign plaintiffs could avoid such strictures by
pleading under the ATCA.
This question is far from settled, however, and the
Supreme Court’s decision in Sosa, though sugges-
tive, offers little guidance. While it recognizes the
possibility of reading an exhaustion requirement into
the ATCA, the Court states only that it “would cer-
tainly consider this [exhaustion] requirement in an
appropriate case.” 124 S. Ct. at 2766, n.21. Other
federal courts appear to be less receptive to the idea.
In short, it is far from clear that, purely as a matter
of United States jurisprudence, the ATCA contains
any exhaustion requirement at all.
Enahoro v. Abubakar, 408 F.3d 877, 889-90 (7th Cir. 2005)
(Cudahy, J., dissenting in part) (footnotes omitted). Other
courts have avoided the issue by finding that even if exhaus-
tion were to apply to the ATCA, local remedies would in
those cases be futile and therefore need not be exhausted. See,
e.g., Presbyterian Church of Sudan v. Talisman Energy, Inc.,
244 F. Supp. 2d 289, 343 n.44 (S.D.N.Y. 2003); see also Ena-
horo, 408 F.3d at 892 (Cudahy, J., dissenting in part) (“There
can be little doubt but that the legal remedies offered by the
Nigerian courts were indeed ineffective, unobtainable, unduly
8972 SAREI v. RIO TINTO
prolonged, inadequate or obviously futile under any applica-
ble exhaustion provisions.”).
Congressional intent is of “paramount importance” to any
exhaustion inquiry. Patsy v. Bd. of Regents, 457 U.S. 496, 501
(1982). Where Congress specifically mandates it, exhaustion
is required. Coit Independence Joint Venture v. Fed. Sav. &
Loan Ins. Corp., 489 U.S. 561, 579 (1989); Patsy, 457 U.S.
at 502 n.4. Congressional intent may be descried from the
statutory language, legislative history or recent congressional
activity. See Patsy, 457 U.S. at 502 & n.4. When Congress
has not clearly required exhaustion, sound judicial discretion
usually governs. See McGee v. United States, 402 U.S. 479,
483 & n.6 (1971); Porter v. Bd. of Trs., Manhattan Beach
Unified Sch. Dist., 307 F.3d 1064, 1070 (9th Cir. 2002) (“If
a statute does not provide for exhaustion of administrative
remedies, a district court may require exhaustion in the exer-
cise of its discretion.”). Although we have discretion, we may
not create exhaustion requirements for “policy considerations
alone . . . unless exhaustion is consistent with congressional
intent.” Knight v. Kenai Peninsula Borough Sch. Dist., 131
F.3d 807, 816 (9th Cir. 1997) (quoting Patsy, 457 U.S. at
513).
1. Congressional Intent
a. Statutory Language
The ATCA simply provides that “[t]he 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.” 28 U.S.C. § 1350. There is no
dispute that the statute does not explicitly require exhaustion.
Rio Tinto, supported by amicus curiae, argues that the stat-
ute implicitly requires exhaustion because of the ATCA’s use
of the language, “in violation of the law of nations,” and
because exhaustion is customary in international law. This
SAREI v. RIO TINTO 8973
argument, adopted by the dissent, has some appeal. It would
make recourse to other, less certain modes of analysis unnec-
essary. But for reasons we explain below, unlike our col-
league in dissent, we are not persuaded.
b. Legislative History
There is complete silence in the ATCA’s legislative his-
tory. See, e.g., IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d
Cir. 1975) (characterizing the ATCA as “a kind of legal
Lohengrin . . . no one seems to know whence it came”); In re
Estate of Marcos, 978 F.2d at 498 (“The debates that led to
the Act’s passage contain no reference to the Alien Tort Stat-
ute, and there is no direct evidence of what the First Congress
intended it to accomplish.”); Tel-Oren, 726 F.2d at 789
(Edwards, J., concurring) (“the legislative history offers no
hint of congressional intent in passing the statute”). Therefore,
an inquiry into the ATCA’s legislative history is of little help.
As the dissent points out, however, only five years after
Congress passed the ATCA, the United States negotiated and
signed the Jay Treaty with Great Britain. Treaty of Amity,
Commerce and Navigation (Jay Treaty), Nov. 19, 1794, U.S.-
U.K., 8 Stat. 116. (Dissent at 9003.) Article VI of the Jay
Treaty created an international arbitration procedure for pre-
Revolutionary War debts claimed by British creditors against
American debtors, but this mechanism could be invoked only
if, “by the ordinary course of judicial proceedings, the British
creditors cannot now obtain, and actually have and receive
full and adequate compensation . . . .” 8 Stat. at 119. The dis-
sent argues that Article VI, with its apparent similarity to the
modern rule of exhaustion of local remedies, suggests that the
First Congress was aware of the principle of exhaustion. But
where does that leave us? It may mean that the absence of
explicit exhaustion language in the ATCA was purposeful.
See Edwards v. Aguillard, 482 U.S. 578, 594 (1987) (“The
plain meaning of the statute’s words, enlightened by their
context and the contemporaneous legislative history, can con-
8974 SAREI v. RIO TINTO
trol the determination of legislative purpose.”). Put differ-
ently, the explicit exhaustion requirement in the Jay Treaty
may reveal that the First Congress did not view exhaustion as
an automatic rule of customary international law (or “the law
of nations” as it was termed at the time). In the dissent’s
words, not only the 1991 Congress that passed the TVPA, but
also the First Congress that passed the ATCA most likely
knew “how to require exhaustion of remedies for torts ‘com-
mitted in violation of the law of nations or a treaty of the
U.S.’ when it wishe[d] to do so.” (Dissent at 8996.) At best,
a comparison between the text of the ATCA and that of the
Jay Treaty is inconclusive. We therefore look to more recent
pronouncements of congressional intent regarding a possible
exhaustion requirement in the ATCA.
c. The TVPA
Congress’ most recent statements regarding a federal cause
of action for customary international law violations that occur
outside the United States is found in the TVPA, enacted in
1991. The TVPA created an “unambiguous” cause of action
for official torture and extrajudicial killing — both violations
of customary international law — committed outside the
United States. See H.R. Rep. No. 102-367 at 3 (1991),
reprinted in 1992 U.S.C.C.A.N. 84, 86 (“The TVPA would
establish an unambiguous and modern basis for a cause of
action that has been successfully maintained under an existing
law, section 1350 of the Judiciary Act of 1789 . . . .”) (empha-
sis added).23 Unlike the ATCA, the TVPA is available to
23
The ambiguity alluded to arose from Judge Bork’s concurring opinion
in Tel-Oren, 726 F.2d at 799, where he held that the ATCA and its refer-
ence to the law of nations did not amount to a congressional grant of a
cause of action. In Congress’ words, “[t]he TVPA would provide such a
grant.” H.R. Rep. No. 102-367 at 4, 1992 U.S.C.C.A.N. at 86; see also 28
U.S.C. § 1350, historical and statutory notes, Torture Victim Protection,
Section 2 - Establishment of civil action. The ambiguity has also been
resolved by the Supreme Court’s interpretation of the ATCA in Sosa:
SAREI v. RIO TINTO 8975
aliens and U.S. citizens. See H.R. Rep. No. 102-367 at 4,
reprinted in 1992 U.S.C.C.A.N. at 86 (“While the Alien Tort
Claims Act provides a remedy to aliens only, the TVPA
would extend a civil remedy also to U.S. citizens who may
have been tortured abroad.”).24
Most significantly for our purpose here, the TVPA contains
the express exhaustion requirement that the ATCA does not.
See 28 U.S.C. § 1350, historical and statutory notes, Torture
Victim Protection, Section 2(b) (“A court shall decline to hear
a claim under this section if the claimant has not exhausted
adequate and available remedies in the place in which the
conduct giving rise to the claim occurred.”). A House legisla-
tive report explains why a TVPA cause of action requires
exhaustion, in terms that admittedly could apply to the ATCA
as well:
The bill provides that a court shall decline to hear
and determine a claim if the defendant establishes
that the claimant has not exhausted adequate and
[A]lthough the [ATCA] is a jurisdictional statute creating no new
causes of action, the reasonable inference from the historical
materials is that the statute was intended to have practical effect
the moment it became law. The jurisdictional grant 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
at the time.
542 U.S. at 724.
24
Compare 28 U.S.C. § 1350, historical and statutory notes, Torture
Victim Protection, Section 2(a) (TVPA) (“An individual who, under actual
or apparent authority, or color of law, of any foreign nation . . . subjects
an individual to torture . . . or . . . extrajudicial killing shall, in a civil
action, be liable for damages . . . .”) with 28 U.S.C. § 1350 (ATCA) (“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.”) (emphasis added).
8976 SAREI v. RIO TINTO
available remedies in the place in which the conduct
giving rise to the claim occurred. This requirement
ensures that U.S. courts will not intrude in cases
more appropriately handled by courts where the
alleged torture or killing occurred. It will also avoid
exposing U.S. courts to unnecessary burdens, and
can be expected to encourage the development of
meaningful remedies in other countries.
H.R. Rep. No. 102-367 at 5, reprinted in 1992 U.S.C.C.A.N.
at 87-88.25
In passing the TVPA, however, Congress did not discuss
whether the ATCA, like the TVPA, should (or does) require
exhaustion of local remedies. Rather, Congress simply stated
generally that the ATCA provides “important uses and should
not be replaced,” H.R. Rep. No. 102-367 at 3, 1992
U.S.C.C.A.N. at 86, and that it “should remain intact.” S. Rep.
No. 102-249 at 5. Because Congress was obviously aware of
the ATCA, it could have amended the statute to include an
exhaustion requirement similar to the one contained in the
TVPA. See Bates v. United States, 522 U.S. 23, 29-30 (1997)
(“Where Congress includes particular language in one section
of a statute but omits it in another section of the same Act, it
is generally presumed that Congress acts intentionally and
purposefully in the disparate inclusion or exclusion.”) (inter-
nal citations and quotations omitted). And if Congress under-
stood that the ATCA already contained an exhaustion
provision, it is not clear why it would add a superfluous
exhaustion provision to the TVPA. See, e.g., Williams v. Tay-
lor, 529 U.S. 362, 404 (2000) (“[T]he cardinal principle of
25
Congress also included an exhaustion requirement in another statute
involving claims of human rights violations against foreign states, the For-
eign Sovereign Immunities Act, 28 U.S.C. § 1602, et seq. Under the FSIA,
a court shall decline to hear a case alleging specified human rights abuses
against a foreign sovereign unless that sovereign is designated as a state
sponsor of terrorism and the plaintiff has afforded the sovereign “a reason-
able opportunity” to arbitrate the claim.” 28 U.S.C. § 1605(a)(7)(B)(i).
SAREI v. RIO TINTO 8977
statutory construction [is] that courts must give effect, if pos-
sible, to every clause and word of a statute . . . .”) (internal
citations and quotations omitted).
On the other hand, the TVPA’s legislative history suggests
that Congress may have believed that exhaustion of local rem-
edies was required in some situations where U.S. courts are
faced with international law claims. See S. Rep. No. 102-249
at 10 (“[A]s this legislation involves international matters and
judgments regarding the adequacy of procedures in foreign
courts, the interpretation of section 2(b) [(requiring exhaus-
tion)], like the other provisions of this act, should be informed
by general principles of international law.”). But upon closer
inspection, that legislative history stops short of a broad and
unambiguous statement that Congress believed that the satis-
faction of the international exhaustion rule was required as a
matter of U.S. domestic law before an ATCA claim could be
heard in a U.S. court.
In attempting to glean congressional intent with respect to
the ATCA from the TVPA’s legislative history, we also note
that Congress was targeting only the specific substantive
claims of torture and extrajudicial killing: “Official torture
and summary executions merit special attention in a statute
expressly addressed to those practices.” S. Rep. No. 102-249
at 5; H.R. Rep. No. 102-367 at 4, 1992 U.S.C.C.A.N. at 86.
Further, the TVPA’s exhaustion rule was tailor-made with
those substantive international law violations in mind and, at
least for some, was not expected to be a significant hurdle for
torture victims:
Cases involving torture abroad which have been
filed under the Alien Tort Claims Act show that tor-
ture victims bring suits in the United States against
their alleged torturers only as a last resort. Usually,
the alleged torturer has more substantial assets out-
side the United States and the jurisdictional nexus is
easier to prove outside the United States. Therefore,
8978 SAREI v. RIO TINTO
as a general matter, the committee recognizes that in
most instances the initiation of litigation under this
legislation will be virtually prima facie evidence that
the claimant has exhausted his or her remedies in the
jurisdiction in which the torture occurred. The com-
mittee believes that courts should approach cases
brought under the proposed legislation with this
assumption.
S. Rep. No. 102-249 at 9-10 (emphasis added). It appears,
then, that when addressing causes of action based on norms
of customary international law, Congress has treated different
kinds of substantive claims differently — a caution against
importing an across-the-board exhaustion requirement into
ATCA based on what Congress did in the TVPA.26
26
Despite the dissent’s assertion to the contrary (Dissent at 8998), we
agree that the TVPA has expanded rather than narrowed U.S. remedies for
torture and extrajudicial killing overseas. First, the TVPA created reme-
dies for U.S. citizens never available to them under the ATCA. Second,
aliens had only what Congress considered an ambiguous right to bring tor-
ture claims under the ATCA because of Judge Bork’s opinion in Tel-Oren.
Thus, the TVPA confirmed the existence of a clear, safe-harbor cause of
action for alien victims of torture and extrajudicial killings.
The passage of the TVPA can be said to be a narrowing of an alien’s
remedies for torture in U.S. courts only if, after the TVPA, an alien can
no longer bring a torture claim under the ATCA. This was the Seventh
Circuit’s conclusion in Enahoro. See 408 F.3d at 886 (“It is hard to imag-
ine that the Sosa Court would approve of common law claims based on
torture and extrajudicial killing when Congress has specifically provided
a cause of action for those violations . . . .”). Rio Tinto has not made this
latter argument, and we are not endorsing such a result.
We do not read torture and extrajudicial killing out of the ATCA, as the
dissent claims. (Dissent at 9000.) That issue is not squarely before us, and
we note that Enahoro’s resolution of the complexities that result from the
apparent overlap between the TVPA and the ATCA may not be the only
appropriate approach — a clear safe harbor statute need not eclipse the
more general and ambiguous statute that preceded it.
Lastly, the dissent’s argument that “[i]f the majority is correct, Congress
has made it more difficult for aliens to bring torture claims into U.S.
SAREI v. RIO TINTO 8979
[21] Like the First Congress’ intent in passing the ATCA
(especially when viewed in the context of the Jay Treaty’s
exhaustion requirement), so too Congress’ intent and under-
standing in 1991 with respect to the ATCA is unclear. Con-
gress may have affirmatively declined to add an exhaustion
requirement to the ATCA while incorporating such a require-
ment in the TVPA. Or Congress may have intended or under-
stood exhaustion to apply to international law-based causes of
action across-the-board.27 But given (i) the lack of express his-
torical or contemporary congressional intent regarding
exhaustion under the ATCA, (ii) Congress’ recent pronounce-
ment that the ATCA should remain “intact” and “unchanged”
and (iii) Congress’ specific focus in the TVPA on torture and
extrajudicial killing, we cannot conclude that legislative intent
supports importing an exhaustion requirement into the ATCA.28
courts because now (under TVPA) they must first exhaust their remedies,
whereas previously (under ATCA) they did not” is deeply ironic. (Dissent
at 8998 n.4.) This is actually one of the premises of the dissent’s approach
— not ours. We hold that exhaustion is not required at this time under the
ATCA. It is the dissent that would import exhaustion into the ATCA
(which may or may not encompass torture claims after the TVPA) and
make it more difficult to bring torture or any other ATCA claim in U.S.
courts.
27
The dissent’s invocation of the Charming Betsy interpretive doctrine
in light of the ambiguity in congressional intent is not quite on point. See
Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804)
(“[A]n act of Congress ought never to be construed to violate the law of
nations if any other possible construction remains.”). (Dissent at 9001.)
Though reading exhaustion into the ATCA would be consistent with inter-
national law norms, failing to read exhaustion into the ATCA would not
violate those norms.
28
The dissent is incorrect in its assertion that we “infer[ ] that exhaus-
tion, which was expressly included in TVPA, must necessarily have been
left out of ATCA, which has no exhaustion requirement.” (Dissent at
8999.) All that we can conclude with any certainty from the TVPA is that
it does not answer the question of what Congress intended with respect to
an exhaustion requirement in the ATCA.
Furthermore, our reasoning has little connection to that of Papa v.
United States, 281 F.3d 1004 (9th Cir. 2002), where we read the statute
8980 SAREI v. RIO TINTO
Therefore, we turn to whether we should import exhaustion
into the ATCA as an exercise of judicial discretion.
2. Judicial Discretion
Rio Tinto, amicus curiae and the dissent advance plausible
though ultimately unconvincing arguments in favor of requir-
ing exhaustion as an exercise of judicial discretion. The dis-
sent in particular draws upon a plethora of doctrines and
sources, making a best case scenario for reading exhaustion
into the ATCA. With respect, we believe our colleague over-
states the clarity of his case and underplays plausible counte-
rarguments and real ambiguities in international and domestic
law. Whether one finds the arguments for or against exhaus-
tion more or less persuasive, however, we conclude that the
balance tips against judicially engrafting an exhaustion
requirement onto a statute where Congress has declined to do
of limitations from the TVPA into the ATCA. (Dissent at 9000.) The ques-
tion of whether there should be a limitations period was never considered
by Papa. Relying on North Star Steel Co. v. Thomas, 515 U.S. 29, 33
(1995) (“[O]ften federal statutes fail to provide any limitations period for
the causes of action they create, leaving courts to borrow a period . . . to
limit these claims.”) (cited by Papa, 281 F.3d at 1012 n.30), Papa
assumed that like any other civil cause of action considered by the
Supreme Court, an ATCA suit must have a limitations period. Therefore,
Papa was left only with the question of how long that limitations period
should be. If the ATCA is to have an imported exhaustion requirement,
then the TVPA may be a good source for determining the standards of that
requirement. But this does not answer the antecedent question of whether
exhaustion should be imported into the ATCA in the first instance.
Lastly, we acknowledge that it is hazardous to attempt to gauge con-
gressional intent from silence or comments expressed in the context of
another statute’s legislative history, but we must make do with the meager
legislative history available to us. Moreover, it seems no more hazardous
than the dissent’s preference for reading a new requirement into a law that
does not explicitly provide for it. “If Congress intended to do something
different, let Congress fix it.” Amalgamated Transit Union Local 1309,
AFL-CIO v. Laidlaw Transit Servs., Inc., 448 F.3d 1092, 1100 (9th Cir.
2006) (Bybee, J., dissenting from denial of rehearing en banc).
SAREI v. RIO TINTO 8981
so, and in an area of international law where the Supreme
Court has called for the exercise of judicial caution rather than
innovation. See Sosa, 542 U.S. at 728 (“These reasons argue
for great caution in adapting the law of nations to private
rights.”). This is particularly so given the uncertainties we
encountered in our previous discussion of legislative intent
regarding the ATCA, because that intent constrains the exer-
cise of our judicial discretion. Cf. Patsy, 457 U.S. at 513
(holding that, in an administrative law setting, “policy consid-
erations alone cannot justify judicially imposed exhaustion
unless exhaustion is consistent with congressional intent”).
The central argument Rio Tinto, amicus curiae and the dis-
sent advance to justify exercising judicial discretion is that
exhaustion of local remedies is an established aspect of inter-
national law. See Enahoro, 408 F.3d at 890 n.6 (Cudahy, J.,
dissenting in part) (collecting sources); Interhandel (Switz. v.
U.S.), 1959 I.C.J. 6, 27 (Mar. 21); Foreign Relations Law
Restatement § 703, cmt. d (“A state may pursue formal, bilat-
eral remedies . . . only after the individual claiming to be a
victim of a human rights violation has exhausted available
remedies under the domestic law of the accused state. Interna-
tional agreements providing remedies to individuals also gen-
erally require that the individual first exhaust domestic
remedies.”) (internal citations omitted). But see Foreign Rela-
tions Law Restatement § 703, cmt. d (“The individual’s fail-
ure to exhaust remedies is not an obstacle to informal
intercession by a state on behalf of an individual, to unilateral
‘sanctions’ by a state against another for human rights viola-
tions, or to multilateral measures against violators by United
Nations bodies or international financial institutions.”); id.
§ 713, cmt. b (“Formal diplomatic [protection] usually awaits
exhaustion of local remedies, but governments often intercede
informally without regard to the person’s domestic reme-
dies.”) (internal citations omitted). Consequently, the “law of
nations” language in the ATCA allegedly provides courts with
the discretion to import an international law doctrine of
8982 SAREI v. RIO TINTO
exhaustion into an ATCA claim along with the substantive
cause of action.
Moreover, the argument goes, not only would requiring
exhaustion be consonant with international law, but such a
requirement would address many of the policy concerns iden-
tified by the district court in its decision to dismiss some (or
all) claims on political question, act of state and comity
grounds. Finally, exhausting local remedies assumedly would
encourage the development of effective local criminal and
civil penalties for human rights violations.
However, this is a patchwork argument that on closer anal-
ysis is less cohesive and unambiguous than it is made out to
be, as the following examples illustrate. First, the interna-
tional law of exhaustion does not compel a U.S. court to apply
it in an ATCA cause of action. Exhaustion, to the extent it
may be a norm within international human rights law, was
developed specifically in the context of international tribunals
— such as the Human Rights Committee or the Inter-
American Court of Human Rights — which were created
through treaties and with the consent of sovereign countries.
Even before exhaustion was written into human rights trea-
ties, the norm evolved in the context of international fora and
was based on assertions of national sovereignty. See Chittha-
ranjan Felix Amerasinghe, Local Remedies in International
Law 62 (2d ed. 2004) (“[T]he rule [of local remedies] seems
to have become entrenched in response to insistence by host
states on powers founded on sovereignty rather than because
it emanated from a basic principle of justice inherent in the
international legal order.”).
Thus, the international norm of exhaustion does not speak
to the hybrid situation before us where a domestic court in a
sovereign country, rather than an international tribunal, is
charged with adjudicating violations of customary interna-
tional law through the vehicle of a civil suit. Although consid-
eration of other countries’ sovereignty is relevant to our
SAREI v. RIO TINTO 8983
inquiry here as it was in our earlier consideration of act of
state doctrine and international comity, the exhaustion limita-
tion imposed on and accepted by international tribunals as a
requirement of international law is not dispositive as to a
United States court’s discretion to impose exhaustion as part
of the ATCA.29
Second, the theory that the “law of nations” language in the
ATCA provides a means by which the international law of
exhaustion may be applied domestically overlooks that inter-
national exhaustion is procedural rather than substantive. See,
e.g., Phosphates in Morocco (Italy v. Fr.), 1938 P.C.I.J. (ser.
A/B) No. 74, at 28 (June 14) (holding that international
responsibility for a substantive harm incurred upon one state
by another attaches at the time of the act and not at a subse-
quent point after the injured state had been denied justice in
the pursuit of local remedies); Amerasinghe, Local Remedies
in International Law at 416 (“Judges or states may have made
statements supporting the view that the [exhaustion] rule is
substantive, but the practice of [international] judicial bodies
relating to the rule leads overwhelmingly to the conclusion
that the rule has not been treated as substantive or as both sub-
stantive and procedural but as solely procedural in character.”
(emphasis added)).
29
The dissent’s suggestion that “[n]othing in Sosa or ATCA indicates
that this distinction [between domestic and international tribunals] mat-
ters,” (Dissent at 9012), misses the point. Sosa did not hold simply that the
“ATCA was written in order to bring the law of nations into American
courts” (Dissent at 9012), but that only some portions of the law of nations
are brought into American courts through the ATCA. See Sosa, 542 U.S.
at 720, 725. If in determining which portions of the law of nations are
usable for ATCA purposes, we rely upon sound judicial discretion (as
argued at length by the dissent at 9015-30), we should not be lulled into
a false sense of familiarity with the term “exhaustion” just because it is the
same term that we use to describe an analogous doctrine in our domestic
law. Although the concepts of exhaustion may be analogous in the interna-
tional and domestic spheres, they are not identical, and the international
law of exhaustion has developed in part as a result of uniquely interna-
tional concerns.
8984 SAREI v. RIO TINTO
The substance-procedure distinction is important in this
case because Sosa held that the ATCA “is a jurisdictional stat-
ute creating no new causes of action . . . [and was] 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 at the time.”
542 U.S. at 724. None of the substantive definitions of inter-
national law violations in modern human rights treaties con-
tain exhaustion as an element of such violations. To the extent
the exhaustion requirement appears in such treaties, it appears
separately as a general requirement. See, e.g., Optional Proto-
col to the International Covenant on Civil and Political
Rights, art. 2, opened for signature Dec. 16, 1966, 999
U.N.T.S. 302 (“[I]ndividuals who claim that any of their
rights enumerated in the Covenant have been violated and
who have exhausted all available domestic remedies may sub-
mit a written communication to the [Human Rights] Commit-
tee for consideration.”); (Dissent at 9005-9007 (collecting
sources)). Sosa held that the ATCA provides jurisdiction for
a violation of substantive norms comparable to “violation of
safe conducts, infringement of the rights of ambassadors, and
piracy.” 542 U.S. at 724.
The exhaustion rule is not like any of those, or modern sub-
stantive equivalents such as torture, extrajudicial killing,
genocide, slavery, prolonged arbitrary detention and system-
atic racial discrimination. See Foreign Relations Law Restate-
ment § 702 (cited with approval by Sosa, 542 U.S. at 737).
The Supreme Court has not addressed whether the methodol-
ogy it employed in Sosa to identify some substantive interna-
tional norms as falling within the ATCA’s jurisdictional grant
is applicable to procedural and other nonsubstantive custom-
ary law norms. Although importing exhaustion may serve the
cautious ends advocated in Sosa, opening the door through the
ATCA to other, nonsubstantive customary international law
norms — such as universal jurisdiction — may be more prob-
lematic. See id. § 404 cmt. a (“[I]nternational law permits any
state to apply its laws to punish certain offenses although the
SAREI v. RIO TINTO 8985
state has no links of territory with the offense, or of national-
ity with the offender (or even the victim). Universal jurisdic-
tion over the specified offenses is a result of universal
condemnation of those activities and general interest in coop-
erating to suppress them, as reflected in widely accepted inter-
national agreements and resolutions of international
organizations. These offenses are subject to universal jurisdic-
tion as a matter of customary law.”).
Third, the argument that requiring exhaustion will improve
compliance with international human rights law in other coun-
tries because it provides an incentive for those countries to
improve their legal systems appears plausible on its face. (See
Dissent at 9020-22.) Although advanced with some fre-
quency, however, this argument remains fairly speculative
and most often lacks any empirical data showing improve-
ments in the quality or accessibility of local remedies as a
result of the application of the local remedies rule at the inter-
national level. Cf. Ryan Goodman & Derek Jinks, Measuring
the Effects of Foreign Human Rights Treaties, 14 Eur. J. Int’l
L. 171, 182-83 (2003) (“Public international law desperately
needs . . . studies that connect the law to events on the ground
. . . . [W]e still do not satisfactorily know the full effects of
human rights treaties.”). An alternative and perhaps equally
plausible hypothesis is that “[f]oreign court rulings against
rights-abusing defendants have the effect of putting pressure
‘from above’ on the state where the rights abuses occurred.”
Ellen Lutz & Kathryn Sikkink, The Justice Cascade: The
Evolution and Impact of Human Rights Trials in Latin Amer-
ica, 2 Chi. J. Int’l L. 1, 4 (2001); see also id. at 24-25, 30 (dis-
cussing the possibility that the arrest and near trial of General
Pinochet in Europe and European court cases against Argen-
tine military officers were catalysts in Chile and Argentina,
respectively, for more aggressive pursuit of human rights suits
in those countries). If this alternative hypothesis were true, the
absence of the exhaustion rule, not its presence, would con-
8986 SAREI v. RIO TINTO
tribute to the development of effective remedies for human
rights abuses.30
[22] Finally, and most importantly, notwithstanding there
are policy reasons that favor judicially creating an exhaustion
requirement for ATCA suits, such questions of policy bring
us back to the legislative choice Congress could have easily
made, but did not, in 1991 when it passed the TVPA and com-
mented on the use and purpose of the ATCA.31 Recognizing
30
This premise is consistent with the rules of the two ad hoc interna-
tional criminal tribunals, for the former Yugoslavia and Rwanda, which
establish the “primacy” of the respective international criminal tribunal
over its national counterpart without regard for the international rule of
exhaustion. See International Criminal Tribunal for the former Yugoslavia,
Rules of Procedure and Evidence, pt. 2, rules 8-13, U.N. Doc. IT/32/Rev.7
(1996), entered into force Mar. 14, 1994, as amended Jan. 8, 1996, avail-
able at http://www1.umn.edu/humanrts/icty/ct-rules7.html; International
Criminal Tribunal for Rwanda, Rules of Procedure and Evidence, pt. 2,
rules 8-13, U.N. Doc. ITR/3/REV.1 (1995), entered into force June 29,
1995, available at http://www1.umn.edu/humanrts/africa/
RWANDA1.htm.
31
Many of the policy arguments in favor of exhaustion — including (i)
the dissent’s concern with “undermin[ing] local governments” (Dissent at
9017), (ii) “single-handedly derail[ing] diplomacy” (Dissent at 9028), (iii)
the inability of courts “to make . . . subtle adjustments in response to
national and world events” (Dissent at 9027) and (iv) the premise that “[a]
lawsuit in U.S. courts will rarely be the best way to resolve supranational
conflicts” (Dissent at 9018) — apply nearly as well to ATCA (and TVPA)
cases where local remedies have been exhausted.
Further, because of the “futility” exception to the exhaustion rule, see
Foreign Relations Law Restatement § 703 cmt. d (“That [exhaustion]
requirement is met if it is shown that [no domestic remedies are] available
or that it would be futile to pursue them.”), many potential human rights
cases brought under the ATCA will be excused from satisfying the
exhaustion requirement altogether even if we were to read it into the stat-
ute — thus side-stepping exhaustion’s purported benefits. And for those
countries where evidence of the futility of requiring exhaustion is less
clear cut, ATCA plaintiffs and defendants will no doubt ask U.S. courts
to conduct “sensitive inquiries into the internal affairs of other countries”
(Dissent at 9025) to determine the adequacy of those countries’ legal and
political systems. In sum, the proffered exhaustion rule may not accom-
plish quite so much as the dissent predicts.
SAREI v. RIO TINTO 8987
the delicate balance between judicial innovation and the “dis-
cretion of the Legislative and Executive branches in managing
foreign affairs,” Sosa, 542 U.S. at 727, the Supreme Court
pointedly said about the ATCA that it “would welcome any
congressional guidance in exercising jurisdiction with such
obvious potential to affect foreign relations . . . .” Id. at 731;
see also id. at 726 (“[T]he general practice [has been] to look
for legislative guidance before exercising innovative authority
over substantive law.”). Absent any clear congressional guid-
ance on importing a blanket exhaustion requirement into the
ATCA, Sosa counsels against doing so by judicial fiat —
especially when Congress has not seen fit to do so when it had
the opportunity.32
[23] We therefore conclude that it would be inappropriate,
given the lack of clear direction from Congress (either in 1789
or when it revisited the issue in 1991), and with only an aside
in a footnote on the issue from the Supreme Court, now to
superimpose on our circuit’s existing ATCA jurisprudence an
exhaustion requirement where none has been required before.
See, e.g., Alperin v. Vatican Bank, 410 F.3d 532, 544-58 (9th
Cir. 2005); In re Estate of Ferdinand Marcos, Human Rights
Litig., 25 F.3d 1467, 1474-76 (9th Cir. 1994). Notwithstand-
ing our dissenting colleague’s scholarship, which goes far
beyond what was presented in the briefs, we take the Supreme
Court’s admonition of caution in Sosa to heart and decline to
read an exhaustion requirement into the ATCA, leaving it to
32
Sosa, rather than the administrative law cases relied upon by the dis-
sent, dissent at 8997 (citing McCarthy v. Madigan, 503 U.S. 140, 144
(1992) (quoting Patsy, 457 U.S. at 501), superseded by statute as stated
in Booth v. Churner, 532 U.S. 731, 739 (2001)), is the appropriate starting
point for determining the scope of our discretion with respect to the
ATCA. Given the specialized jurisprudence developing around the ATCA,
we question whether Patsy and McCarthy’s holdings regarding judicial
discretion to impose exhaustion of administrative remedies can be uncriti-
cally transferred to the international law context.
8988 SAREI v. RIO TINTO
Congress or the Supreme Court to take the next step, if warrant-
ed.33
F. Whether the District Court Properly Denied Leave
to File an Amended Complaint Is Moot
Federal Rule of Civil Procedure 15(a) provides that a trial
court shall grant leave to amend freely “when justice so
requires.” See Foman v. Davis, 371 U.S. 178, 182 (1962)
(“[T]his mandate is to be heeded.”). “[L]eave to amend
should be granted if it appears at all possible that the plaintiff
can correct the defect.” Lopez v. Smith, 203 F.3d 1122, 1130
(9th Cir. 2000) (en banc) (internal citations and quotations
omitted).
Given our conclusion that the dismissal of some of the
plaintiffs’ claims be reversed and the case remanded for fur-
ther proceedings, the plaintiffs’ appeal on this ground is moot.
However, the plaintiffs should have an opportunity to file a
new proposed amended complaint upon remand.
III. CONCLUSION
We REVERSE the district court’s dismissal of all claims as
nonjusticiable political questions. We REVERSE the district
court’s dismissal of the racial discrimination claim on act of
state grounds. We VACATE the district court’s dismissal of
the racial discrimination claim on comity grounds, and its dis-
missal of the UNCLOS claims on act of state and comity
grounds, for reconsideration in light of this opinion. We
AFFIRM the district court’s conclusion that the ATCA does
not contain an exhaustion requirement.
33
Cf. Eberhart v. United States, 126 S. Ct. 403, 407 (2005) (per curiam)
(“Although we find its disposition to have been in error, . . . the Seventh
Circuit felt bound to apply [precedent], even though it expressed grave
doubts . . . . This was a prudent course. It neither forced the issue by upset-
ting what the Court of Appeals took to be our settled precedents, nor bur-
ied the issue by proceeding in a summary fashion. By adhering to its
understanding of precedent, yet plainly expressing its doubts, it facilitated
our review.”)
SAREI v. RIO TINTO 8989
Volume 2 of 2
SAREI v. RIO TINTO 8991
BYBEE, Circuit Judge, dissenting:
In Sosa v. Alvarez-Machain, the Supreme Court addressed
arguments that “international law requires that before assert-
ing a claim in a foreign forum, the claimant must have
exhausted any remedies available in the domestic legal sys-
tem.” 542 U.S. 692, 733 n.21 (2004). Although declining to
do so in Sosa, the Court declared that it “would certainly con-
sider this requirement in an appropriate case.” Id. This is such
a case.1
Plaintiffs-Bougainvilleans alleged that Rio Tinto, a multi-
national British corporation, violated various jus cogens,
including war crimes, crimes against humanity, racial dis-
crimination, and environmental despoliation. They also allege
that Rio Tinto directed these actions through the government
of Papua New Guinea (“PNG”). These actions took place
1
This is a case of first impression in this circuit. We have not addressed
the application of Sosa to exhaustion. The only issue before us in Alperin
v. Vatican Bank, 410 F.3d 532 (9th Cir. 2005), cited by the majority at
8970, was whether that case should be dismissed under the political ques-
tion doctrine. See id. at 538, 541 n.4 (“by agreement of the parties the dis-
trict court limited its discussion to the issue of whether the Holocaust
Survivors’ claims should be dismissed under the political question doc-
trine,” and the “viability of the Holocaust Survivors’ claims apart from the
issue of the political question doctrine is not before us”). We left open the
possibility of other grounds for dismissal, and opined that “[g]iven . . . a
myriad of other procedural and jurisdictional hurdles, the Holocaust Survi-
vors may indeed face an uphill battle in pursuing their claims.” Id. at 539.
8992 SAREI v. RIO TINTO
beginning in the early 1960s, culminating in a 10-year civil
war from 1990 to 2000. See Sarei v. Rio Tinto PLC, 221 F.
Supp. 2d 1116, 1121-27 (C.D. Cal. 2002). In 2001, the U.S.
Department of State warned that adjudication of the Bougain-
ville claims in U.S. courts posed a “very grave” threat to the
“conduct of our foreign relations.” The State Department’s
Statement of Interest was backed by assurances from the then-
PNG government that litigation in U.S. courts had “poten-
tially very serious . . . implications” for PNG and “especially
its relations with the United States.” On reargument following
Sosa, we now have evidence before us, although it is unau-
thenticated, that the new PNG government regards this suit as
“help[ing to] facilitate the process . . . of rectifying . . . his-
toric injustices” and that U.S.-PNG relations will actually be
adversely affected “if the litigation is discontinued.”
This case cries for exhaustion of local remedies before we
assume jurisdiction. The majority holds that it “cannot con-
clude that legislative intent supports [finding] an exhaustion
requirement” in the Alien Tort Claims Act (“ATCA”), 28
U.S.C. § 1350, and, as a matter of discretion, the majority
declines to create one. Maj. op. at 8979-80. The majority then
reverses the district court, finding that the case is justiciable
without infringing U.S. or PNG prerogatives under the politi-
cal question, act of state, and comity doctrines. I would draw
different inferences from the Act and its complicated history.
ATCA provides jurisdiction in federal courts for causes of
action created by substantive international law. In my view,
international law requires exhaustion of local remedies as a
condition to bringing an international cause of action in a for-
eign tribunal. Even if international law did not so require
exhaustion, I would, as an exercise in discretion, require it as
a matter of our domestic law. Exhaustion promotes comity
between Article III courts and any processes available for
resolving disputes within PNG, and it preserves our own role
within the separation of powers. I respectfully dissent.
SAREI v. RIO TINTO 8993
I
The Supreme Court has “acknowledged the general rule
that parties exhaust prescribed administrative remedies before
seeking relief from the federal courts.” McCarthy v. Madigan,
503 U.S. 140, 144 (1992), superceded by statute as stated in
Booth v. Churner, 532 U.S. 731, 732 (2001). “[E]xhaustion
was originally a judge-made rule designed not as a technical
doctrine but rather to prevent premature and unjustified inter-
ference in state proceedings.” Justices of Boston Mun. Court
v. Lydon, 466 U.S. 294, 333 n.3 (1984) (Stevens, J., concur-
ring in part and concurring in the judgment); see also Carr v.
Pac. Mar. Ass’n, 904 F.2d 1313, 1321 (9th Cir. 1990) (apply-
ing an exhaustion requirement that “is a judge-made require-
ment, not one mandated by [the applicable statute] or
collective bargaining agreement”). It is thus “grounded in
principles of comity.” Castille v. Peoples, 489 U.S. 346, 349
(1989). Judge-made or prudential exhaustion is not a prereq-
uisite to the exercise of jurisdiction, but rather “one among
related doctrines—including abstention, finality, and ripeness
—that govern the timing of federal-court decisionmaking.”
McCarthy, 503 U.S. at 144. Prudential exhaustion does not go
to the power of the court—it does not deprive the court of
jurisdiction—but holds that “that power will not ordinarily be
exercised until after an appeal made to the State courts has
been denied.” Davis v. Burke, 179 U.S. 399, 401-02 (1900).2
In effect, the exhaustion requirement holds that even if the
dispute is ripe, it may not be ripe for decision in this forum.
Although federal courts created the exhaustion doctrine in
the habeas context to prevent “unnecessary conflict between
[federal and state] courts equally bound to guard and protect
rights secured by the constitution,” Ex parte Royall, 117 U.S.
2
Statutorily required exhaustion, by contrast, may be jurisdictional. See
Weinberger v. Salfi, 422 U.S. 749, 764-67 (1975); Marathon Oil Co. v.
United States, 807 F.2d 759, 768 (9th Cir. 1986); Montgomery v. Rums-
feld, 572 F.2d 250, 252 (9th Cir. 1978).
8994 SAREI v. RIO TINTO
241, 251 (1886), we have required exhaustion in other con-
texts where it will respect the processes afforded by a separate
sovereign. For example, the Supreme Court has required
exhaustion of tribal remedies so as not to “impair the author-
ity of tribal courts,” and to “reflect[ ] the fact that Indian
tribes retain ‘attributes of sovereignty over both their mem-
bers and their territory.’ ” Iowa Mut. Ins. Co. v. LaPlante, 480
U.S. 9, 14-15 (1987) (quoting United States v. Mazurie, 419
U.S. 544, 557 (1975)). In National Farmers Union Insurance
Cos. v. Crow Tribe, 471 U.S. 845 (1985), the Court reversed
the judgment and remanded the case because “[u]ntil petition-
ers have exhausted the remedies available to them in the
Tribal Court system, it would be premature for a federal court
to consider any relief.” Id. at 857 (citation omitted). Referring
to National Farmers, the Court later commented that “consid-
erations of comity direct[ed] that tribal remedies be exhaust-
ed” even though “the existence of tribal court jurisdiction
presented a federal question within the scope of 28 U.S.C.
§ 1331.” Iowa Mut., 480 U.S. at 15.
The Court has also required exhaustion of federal adminis-
trative remedies as “ ‘an expression of executive and adminis-
trative autonomy.’ ” McKart v. United States, 395 U.S. 185,
194 (1969) (quoting LOUIS L. JAFFE, JUDICIAL CONTROL OF
ADMINISTRATIVE ACTION 425 (1965)); see also Pavano v. Sha-
lala, 95 F.3d 147, 150 (2d Cir. 1996) (“Parties are generally
required to exhaust their administrative remedies, in part
because of concerns for separation of powers.”); Mohammad
v. Carlson, 739 F.2d 122, 124 (3d Cir. 1984) (“The principles
of exhaustion have a constitutional dimension. For courts to
act prematurely, prior to the final decision of the appropriate
administrative agency, would raise a serious question impli-
cating the doctrine of separation of powers.”), superceded by
statute as recognized in Nyhuis v. Reno, 204 F.3d 65, 71 n.7
(3d Cir. 2000). The Court has explained its concerns:
Certain failures to exhaust may deny the administra-
tive system important opportunities “to make a fac-
SAREI v. RIO TINTO 8995
tual record” . . . or “to exercise its discretion or apply
its expertise” in the course of decisionmaking. There
may be a danger that relaxation of exhaustion
requirements, in certain circumstances, would induce
“frequent and deliberate flouting of administrative
processes,” thereby undermining the scheme of deci-
sionmaking that Congress has created. And of
course, a strict exhaustion requirement tends to
ensure that the agency have additional opportunities
“to discover and correct its own error,” and thus may
help to obviate all occasion for judicial review.
McGee v. United States, 402 U.S. 479, 484 (1971) (citations
omitted) (quoting McKart, 395 U.S. at 194-95); see also Zara
v. Ashcroft, 383 F.3d 927, 931 (9th Cir. 2004); Ruviwat v.
Smith, 701 F.2d 844, 845 (9th Cir. 1983) (per curiam).
As I discuss in Part IV.A, I believe that the same consider-
ations of respect for state and tribal judicial processes dictate
that we stay our hand out of deference to foreign processes
that may resolve disputes that could otherwise be brought
before us under ATCA. Furthermore, as I discuss in Part
IV.B, separation of powers concerns over the judiciary’s role
in mediating disputes that may implicate the foreign affairs
powers of the United States further recommend that parties
exhaust their local remedies before coming to the courts of the
United States. Before addressing these two points, however,
I address in Part II the question of whether Congress has sta-
tutorily precluded exhaustion in this case, and in Part III
whether, as a matter of international norms, exhaustion of
local remedies is required before claims may be brought in a
foreign or supranational forum.
II
A
“Notwithstanding the[ ] substantial institutional interests
[promoted by exhaustion of remedies], federal courts are
8996 SAREI v. RIO TINTO
vested with a ‘virtually unflagging obligation’ to exercise the
jurisdiction given them.” McCarthy, 503 U.S. at 146 (quoting
Colorado River Water Conservation Dist. v. United States,
424 U.S. 800, 817-18 (1976)). On the other hand, “[t]he
injunction to hear the case summarily, and thereupon to dis-
pose of the party as law and justice require, does not deprive
the court of discretion as to the time and mode in which it will
exert the powers conferred upon it.” Ex parte Royall, 117 U.S.
at 251 (internal quotation marks omitted). What is critical for
us is whether in ATCA Congress has spoken clearly to the
question of exhaustion of remedies—either to compel or for-
bid exhaustion—because otherwise we may consider the wis-
dom of the rule for ourselves. “Unlike other statutory
questions, exhaustion is ‘a rule of judicial administration,’ and
unless Congress directs otherwise, rightfully subject to craft-
ing by judges.” Patsy v. Bd. of Regents, 457 U.S. 496, 518
(1982) (White, J., concurring in part) (quoting Myers v. Beth-
lehem Shipping Corp., 303 U.S. 41, 50 (1938)).
B
Without repeating all that the majority has covered, I begin
with the obvious: ATCA does not expressly require exhaus-
tion of remedies before an alien may invoke the jurisdiction
of U.S. courts and seek a remedy in “tort only, committed in
violation of the law of nations or a treaty of the United
States.” 28 U.S.C. § 1350.3 As the majority points out, in what
little legislative history we have on ATCA—and the record is
scant—there is no mention of exhaustion of local remedies.
Moreover, as the Torture Victim Protection Act (“TVPA”)
evidences, Congress knows how to require exhaustion of rem-
edies for torts “committed in violation of the law of nations
or a treaty of the U.S.” when it wishes to do so. See Pub. L.
3
In its entirety, ATCA provides: “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.” 28 U.S.C.
§ 1350.
SAREI v. RIO TINTO 8997
No. 102-256, § 2(b), 106 Stat. 73, codified at 28 U.S.C.
§ 1350 note, § 2(b) (“A court shall decline to hear a claim
under this section if the claimant has not exhausted adequate
and available remedies in the place in which the conduct giv-
ing rise to the claim occurred.”).
When two statutes address similar matters and one of them
expressly requires an act while the other is silent, it is per-
fectly reasonable to infer that Congress intended that the act
be performed in the one case, but not in the other. Bates v.
United States, 522 U.S. 23, 30 (1997); Russello v. United
States, 464 U.S. 16, 23 (1983); Sarei, 221 F. Supp. 2d at
1132-39; see also Maj. op. at 8976. This inference does not
hold, however, with respect to exhaustion. Ordinarily, for
domestic matters, “[o]f ‘paramount importance’ to any
exhaustion inquiry is congressional intent,” so that “[w]here
Congress specifically mandates, exhaustion is required. But
when Congress has not clearly required exhaustion, sound
judicial discretion governs.” McCarthy, 503 U.S. at 144
(emphasis added) (quoting Patsy, 457 U.S. at 501). If we may
require exhaustion in the absence of a congressional mandate
in domestic law, surely we may do so for causes of action that
are not created under domestic law, particularly where, as I
discuss in Part III, exhaustion is a well-recognized require-
ment of the “law of nations.”
If ATCA and TVPA were purely domestic statutes I might
find the inference drawn from the differences between the two
statutes persuasive. Although it is true, as the district court
noted, that ATCA is “a creature of domestic law,” 221 F.
Supp. 2d at 1139, ATCA does not deal exclusively with
domestic matters. ATCA both creates jurisdiction in Article
III courts—a matter within Congress’s domestic powers, see
U.S. CONST. art. III, § 1—and implicitly recognizes that there
are causes of action in tort created by the law of nations or by
treaties of the United States. See Sosa, 542 U.S. at 731 n.19.
ATCA, however, does not create such causes of action;
instead, it looks to non-domestic sources of law to create such
8998 SAREI v. RIO TINTO
causes of action. Id. at 724. By contrast, TVPA is not a
jurisdiction-creating statute; rather, it creates a domestic cause
of action against any “individual who, under actual or appar-
ent authority, or color of law, of any foreign nation . . . sub-
jects an individual to torture.” Pub. L. No. 102-256, § 2(a)(1),
106 Stat. 73, codified at 28 U.S.C. § 1350 note, § 2(a)(1); see
also Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 104-
05 (2d Cir. 2000). Prior to TVPA’s enactment in 1992, such
an action, being a violation of jus cogens, see Siderman de
Blake v. Republic of Argentina, 965 F.2d 699, 714-15 (9th
Cir. 1992), could have been brought in federal court under the
jurisdiction of ATCA. TVPA establishes torture as “an unam-
biguous and modern basis for a cause of action,” thus elimi-
nating any question of an available remedy in U.S. courts.
H.R. REP. NO. 102-367, pt. 2, at 3 (1991), reprinted in 1992
U.S.C.C.A.N. 84, 86. If the majority is correct, however, then
TVPA has actually narrowed the U.S. remedy for torture by
requiring exhaustion in TVPA where it was not previously
required for causes of action brought under ATCA. It is thus
more difficult to bring a torture claim in federal courts—
because of the exhaustion requirement—than it is other inter-
national causes of action.4 See Maj. op. at 8978-79 n.26; see
also Enahoro v. Abubakar, 408 F.3d 877, 884-86 (7th Cir.
2005); id. at 889-90 (Cudahy, J., dissenting).
It makes little sense to think that Congress, having codified
4
The majority responds that remedies for torture are only narrowed if
aliens can no longer bring a claim for torture under ATCA. Maj. op. at
8978-79 n.26. The Seventh Circuit has so held. Enahoro, 408 F.3d at 884-
85, 886 (holding that torture claims are precluded now that TVPA “occup-
[ies] the field” and finding it “hard to imagine that the Sosa Court would
approve of common law claims based on torture and extrajudicial killing
when Congress has specifically provided a cause of action for those viola-
tions and has set out how those claims must proceed”). My point is a little
different: If the majority is correct, Congress has made it more difficult for
aliens to bring torture claims into U.S. courts because now (under TVPA)
they must first exhaust their remedies, whereas previously (under ATCA)
they did not.
SAREI v. RIO TINTO 8999
a cause of action for torture would, at the same time, restrict
its availability. If Congress intended to subject a cause of
action for torture to procedural demands not required for vio-
lation of other jus cogens, we might have expected Congress
to comment on the new requirement. Instead, Congress sim-
ply commented on the utility of the exhaustion requirement to
“ensure[ ] that other U.S. courts will not intrude into cases
more appropriately handled by courts where the alleged tor-
ture or killing occurred. It will also avoid exposing U.S.
courts to unnecessary burdens, and can be expected to encour-
age the development of meaningful remedies in other coun-
tries.” H.R. REP. NO. 102-367, pt. 1, at 5 (1991), reprinted in
1992 U.S.C.C.A.N. 84, 87-88.
Furthermore, the majority’s comparison of ATCA and
TVPA ignores their unique history. Congress enacted TVPA
in response to uncertainty over ATCA following Filartiga v.
Pena-Irala, 630 F.2d 876 (2d Cir. 1980), and the Edwards-
Bork debate in Tel-Oren v. Libyan Arab Republic, 726 F.2d
774 (D.C. Cir. 1984). TVPA clarifies ATCA, providing an
“unambiguous” cause of action for torture and extrajudicial
killing. Because Congress left ATCA “intact,” presumably it
continues to mean what it meant prior to 1992. Where the
majority and I part is over how to read ATCA in light of the
subsequent enactment of TVPA: I would read little into
ATCA from the enactment of TVPA more than 200 years
later; the majority infers that exhaustion, which was expressly
included in TVPA, must necessarily have been left out of
ATCA, which has no exhaustion requirement. As I previously
suggested, the inference the majority draws from this compar-
ison might be reasonable in some contexts; I do not believe
it is useful here. Indeed, applying the majority’s principle
might lead us to conclude that ATCA has no statute of
limitations—since the ATCA is silent, but TVPA contains an
express limitation. Compare 28 U.S.C. § 1350 (containing no
express statute of limitations) with 28 U.S.C. § 1350 note,
§ 2(c) (providing for a ten-year statute of limitations). We
have already rejected this conclusion. In fact, we employed
9000 SAREI v. RIO TINTO
the opposite inference, reading TVPA’s express statute of
limitations back into ATCA. See Deutsch v. Turner Corp.,
324 F.3d 692, 717 n.18 (9th Cir. 2003); Papa v. United States,
281 F.3d 1004, 1011-12 (9th Cir. 2002) (“We are squarely
faced with the issue here, and we decide that the statute of
limitations applicable to the ATCA is that provided by the
TVPA.”). Furthermore, the majority’s reasoning suggests that
torture and extrajudicial killing, having been expressly
included in TVPA, must be read out of ATCA, meaning that
causes of action for these offences are no longer part of the
law of nations. See Enahoro, 408 F.3d at 884-85, 886 (hold-
ing that torture claims are no longer available under ATCA—
not because torture is excluded from the law of nations—but
because TVPA now “occup[ies] the field”).5
It makes more sense to think that Congress codified the
exhaustion requirement because it believed it was consistent
with international law and, thus, consistent with other causes
of action that would come within ATCA’s jurisdiction. The
Senate Judiciary Committee cited international practice as
proof that TVPA’s exhaustion requirement was appropriate.
“[T]he procedural practice of international human rights tribu-
nals generally holds that the respondent has the burden of
raising the nonexhaustion of remedies as an affirmative
defense and must show that domestic remedies exist that the
claimant did not use.” S. REP. NO. 102-249, pt. 4, at 10
(1991). The committee explained that “as this legislation
involves international matters and judgments regarding the
adequacy of procedures in foreign courts, the interpretation of
[the exhaustion provision], like the other provisions of this
act, should be informed by general principles of international
law.” Id.
5
I can only speculate as to why Congress chose not to clarify ATCA
when it drafted the exhaustion provisions of TVPA. It may be that because
TVPA extended the cause of action to United States citizens, Congress
wished to make clear that traditional exhaustion would also apply to citi-
zens suing in their own national courts.
SAREI v. RIO TINTO 9001
While TVPA evidences Congress’s recognition of exhaus-
tion in international law, we should not draw a contrary infer-
ence from the absence of an express exhaustion requirement
in ATCA. As I have mentioned, TVPA is not a jurisdiction-
creating statute. Rather, it creates a cause of action for which
there is jurisdiction in the U.S. courts under ATCA. See Hilao
v. Estate of Marcos, 103 F.3d 767, 778 (9th Cir. 1996).
ATCA, by contrast, is a jurisdiction-creating statute. See Sosa,
542 U.S. at 729. In and of itself, ATCA does not require
exhaustion as a condition precedent to the exercise of jurisdic-
tion by Article III courts. At the same time, ATCA acknowl-
edges the existence of causes of action recognized by
international law or created by U.S. treaties. As the Court
explained in Sosa, “the First Congress understood that the dis-
trict courts would recognize private causes of action for cer-
tain torts in violation of the law of nations” and such “norm[s]
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.” Id. at 724-25;
see also id. at 730-31. The elements of those substantive
causes of action are defined by international law, not by our
domestic law, and may be subject to an exhaustion require-
ment if international law would recognize exhaustion of reme-
dies as an international law norm. To the extent we think there
is ambiguity between the explicit requirement of TVPA and
the implicit mandate of ATCA, we should resolve the
ambiguity in favor of a reading that accords with international
law. See Murray v. Charming Betsy, 6 U.S. (2 Cranch) 64,
118 (1804) (“[A]n act of congress ought never to be construed
to violate the law of nations if any other possible construction
remains.”).
This approach comports with our previous efforts to harmo-
nize ATCA with the more explicit requirements of TVPA. As
Judge Cudahy has explained, “an implicit exhaustion require-
ment in the ATCA would have something to recommend it.
Doing so would, among other things, bring the Act into har-
mony with both the provisions of the TVPA (with which it is
9002 SAREI v. RIO TINTO
at least partially coextensive) and with the acknowledged
tenets of international law.” Enahoro, 408 F.3d at 889-90
(Cudahy, J., dissenting).6 It would also comport with Sosa’s
mandate that we exercise “great caution” in expanding the
range of claims that can be heard under ATCA.7 542 U.S. at
728. It is to the question whether international law requires
exhaustion of local remedies that I now turn.
III
At the time of its enactment, ATCA granted federal courts
jurisdiction “to hear claims in a very limited category defined
by the law of nations and recognized at common law.” Sosa,
542 U.S. at 712. Although “a consensus understanding of
what Congress intended has proven elusive,” the Sosa Court
determined that “no development in the two centuries from
the enactment of § 1350 to the birth of the modern line of
cases . . . has categorically precluded federal courts from rec-
ognizing a claim under the law of nations as an element of
common law.” Id. at 719, 724-25. Claims that may be brought
within ATCA are not limited to those permitted under the law
of nations as it existed at the time of the statute’s enactment
in 1789; but include those “based on the present-day law of
6
Judge Cudahy ultimately concluded that Sosa offered “little guidance”
on the question and that is was “far from clear” whether exhaustion was
required under ATCA. 408 F.3d at 890 (Cudahy, J., dissenting).
7
The majority argues that because Sosa urges caution in expanding the
causes of action available under ATCA, judicial caution precludes recog-
nition of exhaustion. Maj. op. at 8981 (citing Sosa’s directive that “[t]hese
reasons argue for great caution in adapting the law of nations to private
rights”). This turns the Court’s reasoning on its head; the majority’s con-
ception of caution would expand, rather that restrict, the availability of
claims under ATCA. It overlooks the Court’s “reasons” for caution, which
include the fear that courts might “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 “raise risks of adverse foreign policy conse-
quences.” 542 U.S. at 727, 728. An exhaustion requirement would help
abate such fears and would serve to fortify the “high bar” Sosa established
for ATCA claims. Id. at 727.
 SAREI v. RIO TINTO 9003
nations” as long as they “rest on a norm of international char-
acter accepted by the civilized world and defined with a speci-
ficity comparable to the features of the 18th-century
paradigms we have recognized.” Id. at 725. There is strong
evidence that international law—as evidenced in a variety of
sources—recognizes exhaustion of remedies as a condition
precedent to seeking relief before foreign and international tri-
bunals.
Exhaustion is a well-established principle of international
law, recognized by courts and scholars both here and abroad.
It is so well entrenched that one scholar has written that “the
celebrated ‘rule of local remedies’ is accepted as a customary
rule of international law [and] needs no proof today, as its
basic existence and validity has not been questioned,” and that
the rule’s “wide and unchallenged acceptance is evidence of
its utility and of the soundness of its policy foundation.”
CHITTHARANJAN FELIX AMERASINGHE, LOCAL REMEDIES IN
INTERNATIONAL LAW 3 (2d ed. 2003); David R. Mummery, The
Content of the Duty to Exhaust Local Judicial Remedies 58
AM. J. INT’L L. 389, 390 (1964); see also IAN BROWNLIE, PRINCI-
PLES OF PUBLIC INTERNATIONAL LAW 472-73 (6th ed. 2003) (“A
claim will not be admissible on the international plane unless
the individual alien or corporation concerned has exhausted
the legal remedies available to him in the state which is
alleged to be the author of the injury. This is a rule which is
justified by practical and political considerations . . . .”).
A
The United States has long recognized exhaustion of local
remedies as a principle of international law. The Jay Treaty,
drafted just five years after ATCA, included an exhaustion
provision. Creditors could only turn to the arbitration tribunal
established by the treaty if they could not obtain recourse
through “the ordinary course of judicial proceedings.” See
Treaty of Amity, Commerce, and Navigation (Jay Treaty),
9004 SAREI v. RIO TINTO
U.S.-U.K., art. VI, Nov. 19, 1794, 8 Stat. 116.8 According to
the Restatement (Third) of the Foreign Relations Law of the
United States, remedies for human rights violations may be
pursued “only after the individual claiming to be a victim of
a human rights violation has exhausted available remedies
under the domestic law of the accused state,” or has shown
that such efforts would be futile. § 703 comment d (1987).
The executive branch recognized the power of the principle
when it required U.S. nationals to exhaust their available rem-
edies in Castro’s Cuba, explaining that “[t]he requirement for
exhaustion of legal remedies is based upon the generally
accepted rule of international law that international responsi-
bility may not be invoked . . . until after exhaustion of the
remedies available under local law.” United States State
Department Memoranda of March 1, 1961, quoted in Ernest
L. Kerley, Contemporary Practice of the United States Relat-
ing to International Law, 56 AM. J. INT’L L. 165, 167 (1962);
see also Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398,
422-23 (1964) (“Because of [international law’s] peculiar
nation-to-nation character the ususal method for an individual
to seek relief is to exhaust local remedies and then repair to
the executive authorities of his own state to persuade them to
8
The exhaustion requirement predates both the Jay Treaty and ATCA.
“The requirement that local remedies should be resorted to seems to have
been recognized in the early history of Europe, before the modern national
state had been born . . . .” AMERASINGHE, supra, at 22; see also A.A. CAN-
ÇADO TRINDADE, THE APPLICATION OF THE RULE OF EXHAUSTION OF LOCAL REM-
EDIES IN INTERNATIONAL LAW 1 (1983); A.A. Cançado Trindade, Origin and
Historical Development of the Rule of Exhaustion of Local Remedies in
International Law, 12 REVUE BELGE DE DROIT INTERNATIONAL 499, 507, 512
(1976) (noting that “the practice of States throughout the eighteenth cen-
tury was clearly directed towards upholding the local remedies rule”). For
reasons that I explain, infra, it reads too much into ATCA to assume that
because the Senate and the President approved the Jay Treaty with an
express exhaustion requirement, the House and Senate, five years earlier,
could not have anticipated an exhaustion requirement in ATCA. But see
Maj. op. at 8974 (“the explicit exhaustion requirement in the Jay Treaty
may reveal that the First Congress did not view exhaustion as an automatic
rule of customary international law”).
SAREI v. RIO TINTO 9005
champion his claim in diplomacy or before an international
tribunal.”).
B
International tribunals have also recognized and applied
exhaustion, regardless of whether the principle has been cal-
led for in a formal agreement.9 The International Court of Jus-
tice has repeatedly declined to hear cases on this ground,
explaining that “the rule that local remedies must be
exhausted before international proceedings may be instituted
is a well-established rule of customary international law.”
Interhandel (Switzerland v. United States of America), 1959
I.C.J. 6, 27 (March 21), see also Case Concerning Avena and
Other Mexican Nationals (Mexico v. United States), 2004
I.C.J. 12, 128 (March 31) (allowing Mexico’s claims to pro-
ceed, but barring individual claims because “[t]he individual
rights of Mexican nationals . . . are rights which are to be
asserted, at any rate in the first place, within the domestic
legal system of the United States.”) (quotations omitted);
Case of Certain Norwegian Loans (France v. Norway), 1957
I.C.J. at 39 (Lauterpacht, J., concurring and dissenting)
(explaining that “however contingent and theoretical these
remedies may be, an attempt ought to have been made to
exhaust them”). The ICJ has recognized that the exhaustion
requirement is so fundamental that, even where an interna-
tional agreement fails to include the provision, it exists by
default unless the agreement expressly states that exhaustion
is not required. International jurisprudence is “unable to
accept that an important principle of customary international
law should be held to have been tacitly dispensed with, in the
9
Like its U.S. domestic counterpart, the rule of exhaustion of local rem-
edies is largely judge-made. “[P]erhaps more so than any other rule of
international law,” it “undoubtedly grew up under the nurturing of profes-
sional administrators.” Mummery, supra, at 393. The law continues to be
“sheltered from the harsher political winds” that shape much of interna-
tional law because its development rests in the hands of judges. Id.
9006 SAREI v. RIO TINTO
absence of any words making clear an intention to do so.”
Case Concerning Elettronica Sicula S.p.A. (United States v.
Italy), 1989 I.C.J. 15, 42, 76 (July 20); see also Case Con-
cerning Avena, 2004 I.C.J. at 48 n.97 (Counter-Memorial of
the United States of America) (“The Court has found the
exhaustion requirement so important a principle of customary
international law that it held that the requirement of exhaus-
tion may not be assumed to have been dispensed with under
a treaty unless that treaty expressly so provides.”); A.O.
Adede, A Survey of Treaty Provisions on the Rule of Exhaus-
tion of Local Remedies, 18 HARV. INT’L L.J. 1, 8 n.19 (1977)
(noting that where exhaustion is not explicitly provided, it
may not be treated as excluded, as “no such implication from
the mere fact of silence is proper”).
The American Convention on Human Rights, European
Convention for the Protection of Human Rights and Funda-
mental Freedoms, International Convention on the Elimina-
tion of All Forms of Racial Discrimination, and the African
Commission on Human and Peoples’ Rights all require
exhaustion. See Organization of American States, American
Convention on Human Rights art. 46(1)(a), Nov. 22, 1969,
O.A.S.T.S. No. 36, 1144 U.N.T.S. 123, 155, 9 I.L.M. 673,
687 (A requirement of admission of a petition or communica-
tion is “that the remedies under domestic law have been pur-
sued and exhausted in accordance with generally recognized
principles of international law”); Council of Europe, Euro-
pean Convention for the Protection of Human Rights and
Fundamental Freedoms art. 35(1), Nov. 4, 1950, 321 U.N.T.S.
221, E.T.S. 5, as amended by Protocol No. 3, E.T.S. 45, Pro-
tocol No. 5, E.T.S. 55 and Protocol No. 8, E.T.S. 118 (“The
Court may only deal with the matter after all domestic reme-
dies have been exhausted, according to the generally recog-
nised rules of international law . . . .”); International
Convention on the Elimination of All Forms of Racial Dis-
crimination, art. 11, para. 3, March 7, 1960, 660 U.N.T.S.
211, 226 (“The Committee shall deal with a matter referred
to it in accordance with paragraph 2 of this article after it has
SAREI v. RIO TINTO 9007
ascertained that all available domestic remedies have been
invoked and exhausted in the case, in conformity with the
generally recognized principles of international law. This
shall not be the rule where the application of the remedies is
unreasonably prolonged.”); African Charter on Human and
Peoples’ Rights, art. 50, June 27, 1981, 1520 U.N.T.S. 217,
255, 21 I.L.M. 58 (“The Commission can only deal with a
matter submitted to it after making sure that all local reme-
dies, if they exist, have been exhausted, unless it is obvious
to the Commission that the procedure of achieving these rem-
edies would be unduly prolonged.”). Exhaustion is so well
established that the failure to include an exhaustion require-
ment may call the viability of the agreement into question.
The local remedies rule [adopted in the UN Cove-
nant of Civil and Political Rights] assumed a central
role in the debates on the right of individual petition.
In fact, one may legitimately wonder whether that
right would have been granted at all (even in an
optional protocol) had the rule not been provided for.
A.A. Cançado Trindade, Exhaustion of Local Remedies Under
the UN Covenant on Civil and Political Rights and its
Optional Protocol, 28 INT’L & COMP. L.Q. 734, 755 (1979).
It is far from clear that, as the majority claims, “exhaustion
is procedural rather than substantive.” Maj. op. at 8983. In a
recent meeting of the UN-sponsored International Law Com-
mission, delegates were still engaged in “the long-standing
game of debating whether the rule of exhaustion of local rem-
edies is substantive or procedural,” “an issue on which much
intellectual energy has been wasted.” Robert Rosenstock &
Margo Kaplan, Current Development: The Fifty-Third Ses-
sion of the International Law Commission, 96 AM. J. INT’L L.
412, 417 (2002). One scholar has noted that “[a]s long as the
local remedies rule exists, controversy will remain as to the
question of its conceptual nature, i.e. the question whether the
rule forms a part of procedural law or whether it operates as
9008 SAREI v. RIO TINTO
a part of substantive law.” Karl Doehring, Exhaustion of
Local Remedies, in 3 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL
LAW 238, 240 (Rudolf L. Bindschelder et al, eds., 1997). Cod-
ifications of the rule have largely avoided the question. See
United Nations Int’l Law Comm’n, Second Report on Diplo-
matic Protection, ¶ 35, UN Doc. A/CN.4/514/ (February 28,
2001) (prepared by John Dugard); see also Bradford K.
Gathright, Comment, Step in the Wrong Direction: The
Loewen Finality Requirement and the Local Remedies Rule in
NAFTA Chapter Eleven, 54 EMORY L.J. 1093, 1124 (2005)
(noting that disagreement about the rule’s status prompted
delegates to the 1930 Hague Codification Conference to
“le[ave] the answer intentionally ambiguous”).
There appear to be three schools of thought. The first con-
tends that the rule “applies necessarily, and primarily, to the
determination of the existence of an internationally wrongful
act arising through the breach of an international obligation,
and thus to the genesis of international responsibility.” United
Nations Int’l Law Comm’n, Sixth Report on State Responsa-
bility, ¶ 52, UN Doc. UN Doc. A/CN.4/302 (April 15, June 7,
and July 14 1977) (prepared by Roberto Ago). Thus, “there
is no international injury . . . until the alien has exhausted his
local remedies if available.” Edwin M. Borchard, Theoretical
Aspects of the International Responsibility of States, 1
ZEITSCHRIFT FÜR AUSLÄNDISCHES ÖFFENTLICHES RECHT UND
VÖLKERRECHT 235, 237 (1929) (emphasis in original); see also
Mexican Union Railway (UK v. Mexico), 5 R.I.A.A. 115, 122
(1926) (“It is one of the recognized rules of international law
that the responsibility of the State under international law can
only commence when the persons concerned have availed
themselves of all remedies open to them under the national
laws of the State in question.”); Second Report on Diplomatic
Protection, supra, at ¶ 55 (noting one scholar’s position that
“the exhaustion of remedies rule is a ‘presupposition’ for
unlawfulness”) (quoting Giorgio Gaja, L’ESAURIMENTO DEI
RICORSI INTERNI NEL DIRRITTO INTERNATIONALE (1967)); D.P.
O’CONNELL, 2 INTERNATIONAL LAW 1053 (2d ed. 1970) (noting
SAREI v. RIO TINTO 9009
that the rule is sometimes explained “on the theory that until
municipal remedies have been exhausted there has been no
breach of international law in relation to the treatment of indi-
viduals” and “the injury is not complete until the avenue [of
local remedies] has been explored in vain”). In a widely cited
decision, the Admiralty Transport Arbitration Board recog-
nized that “the international breach does not come into exis-
tence until the private claim is rejected by the highest
competent municipal court,” and, accordingly, “the recourse
to that court is a matter of substance and not of procedure.”
Claim of Finnish Shipowners (Finland v. Great Britain), 3
R.I.A.A. 1479 (1934). Under this view, exhaustion of reme-
dies is not
a condition of international jurisdiction, but rather a
rule of substantive law. While the State of which the
claimant is a national may at any time protest con-
cerning the treatment being accorded to its nationals,
while it may institute a proceeding, if a competent
tribunal exists, for the purpose of establishing that
certain treatment is required by international law, it
will lack a basis for presenting and prosecuting the
particular claim of its national so long as adequate
remedies are available to him under the law of the
respondent State.
J.E.S. Fawcett, The Exhaustion of Local Remedies: Substance
or Procedure?, 31 BRIT. Y.B. INT’L L. 452, 452-53 (1954)
(quoting MANLEY O. HUDSON, INTERNATIONAL TRIBUNALS: PAST
AND FUTURE 189 (1944)). As Judge Hudson of the Interna-
tional Court of Justice expressed it, the local remedies rule “is
not a rule of procedure. It is not merely a matter of orderly
conduct. It is part of the substantive law as to international,
i.e., State-to-State responsibility.” Panevezys-Saldutiskis Rail-
way (Estonia v. Lithuania), 1939 P.C.I.J. (ser. A/B) No. 76,
at 47 (Hudson, J., dissenting).
The second school of thought holds that failure to exhaust
remedies is simply a procedural bar to an international law
9010 SAREI v. RIO TINTO
claim. See Maj. op. at 8983 and sources cited therein. Accord-
ing to this approach, international responsibility begins with
the wrongful act; “the initial action of a State organ already
represents the unlawfulness.” DOEHRING, supra at 240.
A third camp maintains that the question turns on the facts
of each case. “The problem with defining the local remedies
rule generally as either procedural or substantive is that
because the rule applies broadly to many forms of state
responsibility, it serves more than one function.” Gathright,
supra, at 1125. “Legal opinion is unanimous on this last
point: the rule implies a suspensive condition, which may be
procedural or substantive, but to which the right to bring
international claims is subordinated.” Int’l Law Comm’n,
First Report on Diplomatic Protection, ¶173, UN Doc. A/
CN.4/96 (January 20, 1956) (prepared by F.V. Garcia Ama-
dor); See also Fawcett, supra; BROWNLIE, supra, at 497. The
United States State Department has weighed in with the third
camp, explaining the division this way:
Under existing international law where the initial act
or wrong of which complaint is made is not imput-
able to the State, the exhaustion of local remedies is
required with a resultant denial of justice on the part
of the State in order to impute any responsibility to
the State. In this view, the exhaustion of remedies
rule is a substantive rule, i.e., it is required from a
substantive standpoint under international law in
order to impute responsibility to a State.
On the other hand, where the initial act or wrong
of which complaint it made is imputable to the State,
substantively it is unnecessary to exhaust local reme-
dies in order to impute responsibility to the State. . . .
[T]he rule of exhaustion of local remedies in such
circumstance is procedural . . . .”
SAREI v. RIO TINTO 9011
Accordingly, the rule of exhaustion of local reme-
dies may be substantive in certain types of cases and
procedural in others.
Memorandum from Marjorie M. Whiteman, Assistant Legal
Adviser, Department of State, to International Law Commis-
sion (December 18, 1956), Dec. 18, 1956, quoted in M.M.
WHITEMAN, 8 DIGEST OF INTERNATIONAL LAW 789-90 (1967).10
Whether procedural or substantive, exhaustion is a well-
established part of the law of nations and ignoring it contra-
venes those norms. If it is purely substantive, then it is unam-
biguously required by ATCA. If it is purely procedural,
however, it is less clear that it is included in the Supreme
Court’s mandate that we “recognize private causes of action
for certain torts in violation of the law of nations.” Sosa, 542
U.S. at 724.11 There is no resolution to this debate. We cannot
10
The matter is by no means resolved. There was a trend towards the
procedural view at the time of Phosphates in Morocco (Italy v. Fr.), 1938
P.C.I.J. (ser.A/B) No. 74, but the International Law Commission adopted
the substantive view in the 1970s. See Maj. op. at 8983; Second Report on
Diplomatic Protection, supra ¶ 35-37. The International Law Commis-
sion’s current draft articles currently stop short of declaring when interna-
tional responsibility attaches, but declare that “The responsibility of a
State may not be invoked if . . . [t]he claim is one to which the rule of
exhaustion of local remedies applies and any available and effective local
remedy has not been exhausted.” Responsibility of States for Internation-
ally Wrongful Acts, Art. 44, 2001 in Official Records of the General
Assembly, Fifty-sixth Session, Supplement No. 10 (A/56/10). The current
Third Restatement takes no position on the issue; it has relinquished even
the noncommittal stance of the Second Restatement, which declared that
“the exhaustion of available remedies is primarily a procedural require-
ment.” RESTATEMENT (SECOND) OF THE FOREIGN RELATIONS LAW OF THE
UNITED STATES § 206 comment d (1965) (emphasis added).
11
I believe that Sosa’s rule would incorporate even procedural exhaus-
tion, because the international community does not recognize virtually any
“violation of the law of nations” without it. Contrary to the majority’s
opinion, the Sosa rule is not limited to “substantive norms comparable to
‘violation of safe conducts, infringement of the rights of ambassadors, and
9012 SAREI v. RIO TINTO
say with certainty whether exhaustion is a substantive or a
procedural requirement. But we can say that it certainly quali-
fies as “a norm of international character” and is “defined
with specificity” comparable to the classical causes of action.
Sosa, 542 U.S. at 725. Exhaustion is widely-accepted and
well-defined, and it is an integral part of almost every claim
in international law.
As the majority correctly points out, the local remedies rule
was not developed for the use of domestic courts like those
who administer ATCA—it grew out of diplomatic protection
in state-to-state disputes and now serves international tribu-
nals. Nothing in Sosa or ACTA indicates that this distinction
matters. No part of the “law of nations” was developed to
serve ATCA; ATCA was written in order to bring the law of
nations into American courts. The statute presupposes some
difficulty in accommodating the ever-changing law of nations
in a domestic context. We cannot reject aspects of the law of
nations simply because they are not native to domestic courts.
In sum, such a fundamental tenet of international law
deserves recognition in U.S. courts bound to apply the law of
nations under ATCA. As the Court observed over a hundred
years ago:
International law is part of our law, and must be
ascertained and administered by the courts of justice
of appropriate jurisdiction as often as questions of
right depending upon it are duly presented for their
determination. For this purpose, where there is no
treaty and no controlling executive or legislative act
piracy,’ ” Maj. op. at 8984 (quoting Sosa, 542 U.S. at 724), but requires
recognition of “any claim based on the present-day law of nations [that]
rest[s] on a norm of international character accepted by the civilized world
and defined with specificity comparable to the features of the 18th-century
paradigms we have recognized.” Sosa, 542 U.S. at 725.
SAREI v. RIO TINTO 9013
or judicial decision, resort must be had to the cus-
toms and usages of civilized nations, and, as evi-
dence of these, to the works of jurists and
commentators who by years of labor, research and
experience have made themselves peculiarly well
acquainted with the subjects of which they treat.
The Paquete Habana, 175 U.S. 677, 700 (1900); see also
RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE
UNITED STATES, pt. I, ch. 1 (introductory note) (“International
law is law like other law, promoting order, guiding, restrain-
ing, regulating behavior. . . . It is part of the law of the United
States, respected by Presidents and Congresses, and by the
States, and given effect by the courts.”). As Judge Cudahy has
observed,
Certainly in applying a statute like the ATCA, where
liability is predicated on ‘violation of the law of
nations,’ it would seem natural to honor the basic
tenets of public international law. It is also well-
established that, as a general proposition, U.S. law
should incorporate and comport with international
law where appropriate.
Enahoro, 408 F.3d at 890 n.6 (Cudahy, J., dissenting).
C
The exhaustion requirement is not only well accepted in
international law, but it is well defined. The Commission of
Arbitration has recognized it as the defendant’s “right to resist
such an action if the persons alleged to have been injured
have not first exhausted all the remedies available to them
under the municipal law [and] the right to demand that full
advantage shall have been taken of all local remedies.”
Ambatielos Claim (Greece v. United Kingdom), 12 R.I.A.A.
83, 118-19, 23 I.L.R. 306, 334 (1956). Likewise, exceptions
to the exhaustion requirement, similar to those in our domes-
9014 SAREI v. RIO TINTO
tic law, are well-defined and specific. The Restatement
explains that exhaustion is waived where remedies are
unavailable or where “it would be futile” to pursue them.
RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE
UNITED STATES § 703 comment d (1987). The rule is flexible;
it “is not a purely technical or right rule. It is a rule which
international tribunals have applied with a considerable
degree of elasticity. In particular, they have refused to act
upon it in cases in which there are, in fact, no effective reme-
dies owing to the law of the State concerned or the conditions
prevailing in it.” Case of Certain Norwegian Loans (France
v. Norway), 1957 I.C.J. 9, 39 (July 6) (Lauterpacht, J., concur-
ring and dissenting). The International Covenant on Civil and
Political Rights provides that exhaustion is not required when
remedies come only after “undue delay,” and the same excep-
tion has been recognized by the American Convention on
Human Rights, which excuses exhaustion in cases of “unwar-
ranted delay in rendering final judgment.” United Nations
International Covenant on Civil and Political Rights art. 14,
Dec. 16, 1966, 999 U.N.T.S. 171; see also Organization of
American States, American Convention of Human Rights,
Nov. 4, 1950, art. 46(2), O.A.S.T.S. No. 36, 1144 U.N.T.S.
123; Paula Rivka Schochet, Note, A New Role for an Old
Rule: Local Remedies and Expanding Human Rights Jurisdic-
tion Under the Torture Victim Protection Act, 19 COLUM.
HUM. RTS. L. REV. 23 (1987) (discussing exhaustion provi-
sions in various multinational agreements).
U.S. law recognizes similar exceptions to exhaustion.
TVPA requires that “[a] court shall decline to hear a claim . . .
if the claimant has not exhausted adequate and available rem-
edies in the place in which the conduct giving rise to the claim
occurred.” 28 U.S.C. § 1350 note, § (2)(b) (emphasis added).
Legislative history for TVPA suggests that it was understood
that TVPA’s exhaustion requirement would be excused where
it would be excused in an international tribunal, including
“when foreign remedies are unobtainable, ineffective, inade-
quate, or obviously futile.” S. REP. NO. 102-249, pt. 4, at 10
SAREI v. RIO TINTO 9015
(1991). According to the Judiciary Committee, exhaustion is
not difficult to show. “[I]n most instances the initiation of liti-
gation under this legislation will be virtually prima facie evi-
dence that the claimant has exhausted his or her remedies in
the jurisdiction in which the torture occurred. The committee
believes that courts should approach cases brought under the
proposed legislation with this assumption.” Id. at 9-10. The
Judiciary Committee anticipated that the courts “will have to
undertake a case-by-case approach” to determine when
exhaustion is excused, and suggested courts consider “unfair-
ness of the judicial system, unfair procedures, and lack of
competence.” Id. Although the inquiry is complex, legislators
were confident that the principle could be applied by courts
as it was “generally consistent with common-law principles of
exhaustion as applied by courts in the United States.” Id.12
IV
Even if exhaustion were not well developed in international
law, we should recognize exhaustion as a prudential principle
required by our domestic law, and we should recognize it for
the same reasons that we require exhaustion of state, tribal
and administrative remedies. It has been said that “in this area
[of local remedies] particularly international law is essentially
a law regulating or attempting to regulate the practice and
relationships inter se of national administrations, their offi-
cials, agents and proteges, a highly specialized kind of admin-
12
Judicial inquiry into available exceptions in ATCA cases would be
similar to that performed when applying the doctrine of forum non conve-
niens, see Menendez Rodriguez v. Pan American Life Insurance Co., 311
F.2d 429, 433 (5th Cir. 1962) (finding that political refugees could receive
a fair hearing in Cuba), vacated on other grounds, 376 U.S. 779 (1964),
or considering the enforceability of a forum selection clause, see McDon-
nell Douglas Corp. v. Islamic Republic of Iran, 758 F.2d 341, 346 (8th
Cir. 1985) (refusing to consider enforcement of a forum selection clause
where litigation in Iran would “be so gravely difficult and inconvenient
that McDonnell Douglas would for all practicable purposes be deprived of
its day in court”).
9016 SAREI v. RIO TINTO
istrative law.” Mummery, supra, at 393. Accordingly, the rule
“has definite kinship with rules of exhaustion of remedies and
primacy of jurisdiction in other areas of the law of administra-
tive organization, namely, domestic administrative law.” Id. It
is appropriate that we require exhaustion here, where our pro-
ceedings would result in a premature and unjustified interfer-
ence in the resolution of a foreign conflict. Moreover, it will
promote our own position within a government of separated
powers.
A
As I discussed in Part I, there are three general reasons
offered to justify prudential exhaustion. First, requiring
exhaustion demonstrates respect for the courts of a separate
sovereign or the administrative agencies of a coordinate
branch of government. Second, exhaustion permits such
courts or agencies to apply their own expertise to the matters
in question, and allows the sovereign or branch to correct any
errors in its own procedures before the federal courts assume
jurisdiction. Third, even if the matter ultimately finds its way
into our courts, exhaustion frequently requires the parties to
refine their issues and develop the record in a way that will
aid decision in U.S. courts.
First, requiring exhaustion of local remedies will promote
respect for foreign tribunals or other processes for dispute res-
olution, such as commissions or political accords.13 “ ‘Com-
ity,’ in the legal sense, is neither a matter of absolute
obligation, on the one hand, nor of mere courtesy and good
13
I have deliberately refrained from referring to comity between federal
courts and foreign courts, because I do not wish to prejudge what form
local remedies might take. As I discuss infra, at 9022 n.16, we have only
to look at South Africa’s Truth and Reconciliation Commission to see that
some countries may be able to craft unique institutions for dealing with
difficult internal matters. Not every solution requires a judicial solution.
Indeed, governments have much greater flexibility in terms of process and
remedies than American courts may be able to offer.
SAREI v. RIO TINTO 9017
will, upon the other. But it is the recognition which one nation
allows within its territory to the legislative, executive or judi-
cial acts of another nation.” Hilton v. Guyot, 159 U.S. 113,
163-64 (1895). Exhaustion of local remedies is not the same
as comity in this sense: Exhaustion does not require recogni-
tion of the acts of another nation because there are no such
acts to recognize. Thus, exhaustion comes before comity,
while sharing its purposes. Exhaustion recognizes the possi-
bility of legislative, executive or judicial acts in another
nation; it thus respects the processes by which another nation
has constituted itself and is worthy to be considered part of
the community of nations.
Litigation of foreign claims in American courts may under-
mine local governments, who may be seen as weak or unre-
sponsive when they were given no opportunity to address the
problem in the first instance.14 Taking up cases that can be
handled domestically aggravates diplomatic and local tensions
because it interferes with local control and stirs up unneces-
sary publicity. See Steven W. Yale-Loehr, Note, The Exhaus-
tion of Local Remedies Rule and Forum Non Conveniens in
International Litigation in U.S. Courts, 13 CORNELL INT’L L.J.
351, 358 (1980). By use of domestic remedies “the interven-
tion of outsiders is avoided (it is noteworthy that any interven-
tion, no matter how skillful and tactful, is invariably disliked
14
The majority observes that hearing exhausted cases presents the same
potential for undermining local governments. Maj. op. at 8986 n.31. While
this is true, it misses the point. If we respect the international norm requir-
ing exhaustion, we will minimize the number cases that involve potential
meddling in other country’s affairs. In fact, we will intervene only where
governments are so inadequate as not to provide adequate remedies. With
exhaustion, we get the best of both worlds. We retain a commitment to the
principle of international comity, while stepping in to render justice where
required—and only where required. While adjudicating the exhaustion
requirement requires occasional inquiries into the internal affairs of other
nations (in cases where the adequacy of remedies is not readily apparent),
id., this infrequent inquiry is preferable to offering international interven-
tion on behalf of every foreign plaintiff who shops a claim in American
courts.
9018 SAREI v. RIO TINTO
as such); and it is possible to avoid the publication of the dis-
pute to the world at large, which often causes exacerbation.”
Mummery, supra, at 391. The local remedies rule “functions
similarly to the principles of comity, avoiding friction
between states by permitting peaceful settlement before con-
flicts erupt.” Nsongurua J. Udombana, So Far, So Fair: The
Local Remedies Rule in the Jurisprudence of the African
Commission on Human and Peoples’ Rights, 97 AM. J. INT’L
L. 1, 1 (2003). The rule that “a State should be given the
opportunity to redress an alleged wrong within the framework
of its own domestic legal system before its international
responsibility can be called into question,” A.A. CANÇADO
TRINDADE, THE APPLICATION OF THE RULE OF EXHAUSTION OF
LOCAL REMEDIES IN INTERNATIONAL LAW 1 (1983), helps to
guard the sovereign against “excessive infringement by state
to state claims on behalf of private individuals,” see Udom-
bana, supra, at 2 (quoting Jost Delbruck, The Exhaustion of
Local Remedies Rule and the International Protection of
Human Rights: A Plea for a Contextual Approach, in DES
MENSCHEN RECHTZ ZWISCHEN FREIHEIT UND VERANTWORTUNG
213, 217 (Jurgen Jekewitz et al. eds., 1989)). Exhaustion of
remedies helps to maintain sovereignty within the interna-
tional system because
the local remedies rule is really a conflict rule. It is,
when properly constructed, a rule for resolving con-
flicts of jurisdiction between international law and
municipal tribunals and authorities; the rule deter-
mines when and in what circumstances the local
courts, on the one hand, and international tribunals,
on the other, must or may assume jurisdiction over
the issue.
Fawcett, supra, at 454.
An exhaustion rule “is conducive to good order in that it
demarcates the line between the jurisdiction of the national
and the international tribunal.” Mummery, supra, at 390. A
SAREI v. RIO TINTO 9019
lawsuit in U.S. courts will rarely be the best way to resolve
supranational conflicts. As Judge Bork explained in Tel-Oren,
“Diplomacy demands great flexibility and focuses primarily
on the future rather than on the past, often requiring states to
refrain, for the sake of their future relations, from pronounc-
ing judgment on past conduct.” 726 F.2d at 818 (Bork, J.,
concurring); see also id. (“International law, unlike municipal
law (at least in the United States), is not widely regarded as
a tool of first or frequent resort and as the last word in the
legitimate resolution of conflicts.”).
By accepting jurisdiction over foreign suits that can be
appropriately handled locally, the federal courts embroil the
nation in a kind of judicial “imperialism” that suggests the
United States does not respect or recognize a foreign govern-
ment’s ability to administer justice. See Elliot J. Schrage,
Judging Corporate Accountability in the Global Economy, 42
COLUM. J. TRANSNAT’L L. 153, 176 (2003). As one commenta-
tor has observed,
the local remedies rule reconciles national autonomy
with international co-operation in the sense that each
state accepts, in broad lines, the judicial remedies
provided by other states, and yet this acceptance
does not deny the importance of proper international
settlement of a dispute and the international standard
of justice.
Yale-Loehr, supra, at 358 (citing CASTOR H.P. LAW, THE
LOCAL REMEDIES RULE IN INTERNATIONAL LAW 19 (1961)).
Second, exhaustion of remedies gives other countries the
opportunity to address their own conflicts and craft their own
solutions. In the domestic context, the doctrine “acknowl-
edges the commonsense notion of dispute resolution that an
agency ought to have an opportunity to correct its own mis-
takes with respect to the programs it administers before it is
haled into federal court.” McCarthy, 503 U.S. at 145; see also
9020 SAREI v. RIO TINTO
Zara, 383 F.3d at 931 (“The policy underlying the exhaustion
requirement is to give an administrative agency the opportu-
nity to resolve a controversy or correct its own errors before
judicial intervention.”). The principle in international practice
is “not to submit [the claimant] to a mere judicial exercise,”
but is “intended to afford the territorial government an oppor-
tunity actually to repair the injury sustained.” Mummery,
supra, at 402. The exhaustion rule is part of a concerted inter-
national effort to encourage countries to provide effective
local remedies. See Trindade, supra, 28 INT’L & COMP. L.Q.
at 755.
This consideration provides perhaps the most important
practical consideration for the adoption of an exhaustion
requirement in ATCA. If litigants are allowed to seek refuge
in U.S. courts before pursuing available remedies at home, we
will have facilitated parties—including politically-minded
parties—who wish to circumvent the creation and refinement
of local remedies.
The purpose of the requirement that a decision of a
lower court be challenged through the judicial pro-
cess before the State is responsible for a breach of
international law constituted by judicial decision is
to afford the State the opportunity of redressing
through its legal system the inchoate breach of inter-
national law occasioned by the lower court decision.
Loewen Group, Inc. (Can.) v. United States, ICSID (W. Bank)
ARB(AF)/98/3 (June 26, 2003), quoted in Andrea K. Bjork-
lund, Reconciling State Sovereignty and Investor Protection
in Denial of Justice Claims, 45 VA. J. INT’L L. 809, 856
(2005); see also Interhandel, 1959 I.C.J. at 27; Certain Nor-
wegian Loans, 1957 I.C.J. at 96. The exhaustion provision
“can only be beneficial to the development of international
law” and will “help[ ] to raise standards in the domestic
administration of justice.” Trindade, supra, 28 INT’L & COMP.
L.Q. at 756. As Congress recognized in debating the exhaus-
SAREI v. RIO TINTO 9021
tion requirements of TVPA, “[t]his requirement ensures that
U.S. courts will not intrude into cases more appropriately han-
dled by courts where the alleged [wrongs] occurred. It . . . can
be expected to encourage the development of meaningful
remedies in other countries.” H.R. REP. NO. 102-367, pt. 3, at
5, reprinted in 1992 U.S.C.C.A.N. 84, 88-89.15
Moreover, litigation is not always the best vehicle for
resolving difficult internal matters. Exhaustion may thus
encourage creative political solutions beyond our ken. The
exhaustion requirement “acknowledges that a sovereign is not
only in the best position to succeed, particularly when acting
within its own territory, but that a sovereign is also most
familiar with the situation and best able to fashion a remedy
appropriate to local circumstances.” Richard D. Glick, Envi-
ronmental Justice in the United States: Implications of the
International Covenant on Civil and Political Rights, 19
HARV. ENVT’L. L. REV. 69, 99 (1995); see also BROWNLIE,
15
The majority complains about the lack of “empirical data showing
improvements in the quality or accessibility of local remedies as a result
of the application of the local remedies rule.” Maj. op. at 8985. A study
of this scope would indeed be difficult to complete—since cases like the
one before us are rare. We need not obtain proof of the exhaustion’s effec-
tiveness beyond a reasonable doubt before considering scholars’ argu-
ments and case studies as part of our prudential inquiry. That said, there
are convincing empirical examples, see infra, 9022 n.16. These examples
fall short of quantifying “the full effects of human rights treaties,” Maj.
op. at 8985, but they strongly indicate exhaustion helps foster local reme-
dies, while preserving international litigation for those “individuals whose
access to justice is blocked in their home country.” Ellen Lutz & Kathryn
Sikkink, The Justice Cascade: The Evolution and Impact of Human Right
Trials in Latin America, 2 CHI. J. INT’L L. 1, 4 (2001). And even if I
believed that the academic empirical debate was a draw, I would defer to
Congress’s observation that exhaustion “can be expected to encourage the
development of meaningful remedies in other countries.” H.R. REP. NO.
102-367, pt. 3, at 5, reprinted in 1992 U.S.C.C.A.N. 84, 88-89, and the
State Department’s decision, in the case of South Africa, that foreign liti-
gation over reparations for apartheid interfered with that nation’s domestic
development. See In re S. Afr. Apartheid Litig., 346 F. Supp. 2d 538, 553
(S.D.N.Y. 2004).
9022 SAREI v. RIO TINTO
supra, at 473 (noting that “the greater suitability and conve-
nience of national courts as forums for the claims of individu-
als and corporations” is one of the “more persuasive practical
considerations” for the rule).16 Human rights violations, for
example, might more appropriately be addressed with crimi-
nal sanctions, rather than civil remedies of TVPA. “[C]riminal
prosecutions locate control over such actions in the hands of
governments, rather than private citizens, thus avoiding diplo-
matic turmoil.” Beth Stephens, Translating Filartiga: A Com-
parative and International Law Analysis of Domestic
Remedies For International Human Rights Violations, 27
YALE J. INT’L L. 1, 52 (2002). A criminal prosecution at home
would help to publicize the violations locally and would help
to develop and define applicable criminal laws. Id. One could
argue that “civil actions trivialize human rights abuses, imply-
ing that the harms inflicted can be compensated through a
simple monetary payment.” Id.17
16
Failure to exhaust threatens international institutions, not just local
ones. Most claims brought under ATCA could have been brought in an
international forum—one that most likely requires exhaustion. Allowing
claims to be brought in United States courts before efforts at a local solu-
tion allows litigants to forum shop and discourages them from seeking
adjudication in international bodies. See Curtis A. Bradley, The Costs of
International Human Rights Litigation, 2 CHI. J. INT’L L. 457, 469 (2001)
(arguing that alien tort actions are costly to the international system
because they risk preempting or disrupting local remedies or international
institutional responses).
17
One trend we have seen in recent years is the development of creative,
indigenous legal solutions to address alleged human rights violations.
[T]he transition from autocratic rule to democracy in numerous
countries, beginning in South America but extending to Eastern
Europe and parts of Africa, Central America, and Asia, has
caused new governments to devise strategies for coming to terms
with the human rights abuses of prior regimes and, in some cases,
guerrilla opposition groups. In most cases in which states have
decided to seek accountability, they have charted their own
course under domestic law, creating mechanisms tailored to their
individual circumstances. This pattern has led to criminal trials,
truth commissions, purging of former officials from office, and
civil suits against abusers.
SAREI v. RIO TINTO 9023
Finally, in domestic administrative law, we require exhaus-
tion because it promotes more accurate adjudication per-
formed by experts “in cases raising issues of fact not within
the conventional experience of judges or cases requiring the
exercise of administrative discretion.” Far E. Conference v.
United States, 342 U.S. 570, 574 (1952). Administrative
exhaustion aids accuracy because it allows for the develop-
ment of a more complete record. See Ruviwat, 701 F.2d at 845
(“[T]he requirement of exhaustion of remedies will aid judi-
cial review by allowing the appropriate development of a fac-
tual record in an expert forum . . . .”). Similarly, in cases
arising under ATCA, local expertise and proximity to wit-
nesses and physical evidence may foster more accurate fact-
finding. “National courts, familiar with local conditions and
possessing easy access to witnesses, can usually settle dis-
putes more expeditiously and conveniently than international
tribunals.” Yale-Loehr, supra, at 358. Even in a case where
local remedies ultimately prove inadequate, exhaustion may
serve to refine the claims.
B
Requiring exhaustion of local remedies will help to pre-
serve our role in a government of separated powers. Strictly
speaking, separation of powers principles do not require us to
stay our jurisdiction while the parties exhaust their local rem-
edies. But although the Constitution does not demand that we
Steven R. Ratner, New Democracies, Old Atrocities: An Inquiry In Inter-
national Law, 87 GEO. L.J. 707, 714 (1999). We can see evidence of these
local solutions most prominently in South Africa, with the creation of the
Truth and Reconciliation Commission to address the injustices of apart-
heid, see Schrage, supra, at 166, and most recently in Rwanda, with the
development of an alternative dispute resolution method known as gacaca
courts, which emphasize the admission of guilt and expression of remorse
by defendants complicit in the Rwandan genocide, see William A. Scha-
bas, Genocide Trials and Gacaca Courts, 3 J. INT’L CRIM. JUST. 879
(2005).
9024 SAREI v. RIO TINTO
abstain, separation of powers principles should inform our
prudential judgment concerning exhaustion. In many respects
exhaustion resembles the doctrines of political question, com-
ity, and act of state, all of which require respect for foreign
governments and the political branches of our government
and may insist that the courts decline jurisdiction in order to
avoid interfering with sensitive foreign matters to which, if a
U.S. response is required, the political branches must respond.
See Maj. op. at 8951 (political question is a “function of the
separation of powers”), 8960 (“The [act of state] doctrine
reflects the concern that the judiciary . . . may interfere with
the executive’s conduct of American foreign policy.”), 8965
(“Under the international comity doctrine, courts sometimes
defer to the laws or interests of a foreign country and decline
to exercise jurisdiction that is otherwise properly asserted.”).
As the Court explained with respect to the act-of-state doc-
trine:
We once viewed the doctrine as an expression of
international law, resting upon the highest consider-
ations of international comity and expediency. We
have more recently described it, however, as a con-
sequence of domestic separation of powers, reflect-
ing the strong sense of the Judicial Branch that its
engagement in the task of passing on the validity of
foreign acts of state may hinder the conduct of for-
eign affairs.
W. S. Kirkpatrick & Co., Inc. v. Envtl. Tectonics Corp., 493
U.S. 400, 404 (1990) (internal quotation marks omitted).
Between the President and Congress, the political branches
possess the plenary power of the United States to prosecute
our interests abroad “by diplomacy, or, if need be, by war.”
United States v. Diekelman, 92 U.S. 520, 524 (1875); see
United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 320
(1936) (the President is “the sole organ of the federal govern-
ment in the field of international relations”) (internal quota-
SAREI v. RIO TINTO 9025
tion marks omitted). “[T]he conduct of foreign relations is
committed by the Constitution to the political departments of
the Federal Government . . . [and] the propriety of the exer-
cise of that power is not open to judicial inquiry,” United
States v. Pink, 315 U.S. 203, 222-23 (1942), because these are
“decisions of a kind for which the Judiciary has neither apti-
tude, facilities nor responsibility.” Chicago & S. Air Lines,
Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948).
Mere recitation that the political branches are the organs of
foreign policy does not resolve the separation of powers
conundrum, however. Since the adoption of ATCA in Judi-
ciary Act of 1789, we have been charged with providing a
forum for aliens who have suffered injuries in violation of the
law of nations. Deciding whether or not the exercise of juris-
diction will actually interfere with our foreign relations has
been decided on a case-by-case basis, as the majority (and the
district court before us) has done here. We may or may not
be aided by the political branches in deciding whether to exer-
cise jurisdiction, and we may or may not accede to requests
from those branches. See Sosa, 542 U.S. at 733; Alperin v.
Vatican Bank, 410 F.3d 532, 555-57 (9th Cir. 2005). But there
can be little question since ATCA was revived in Filartiga
that many actions that are brought under ATCA involve sensi-
tive inquiries into the internal affairs of other countries. See
Sosa, 542 U.S. at 733 (noting pending cases which the gov-
ernment of South Africa claims interfere with its domestic
policy); Mujica v. Occidental Petroleum Corp., 381 F. Supp.
2d 1164 (C.D. Cal. 2005) (dismissing, on political question
grounds, ATCA claims alleging that the Columbian govern-
ment worked with defendants to bomb plaintiffs’ home town).
Without an exhaustion requirement, courts must depend on
statements from the executive—based on its own factfinding
and expertise—to decide whether we should exercise jurisdic-
tion under ATCA. Where the U.S. State Department has
weighed in, “there is a strong argument that federal courts
should give serious weight to the Executive Branch’s view of
9026 SAREI v. RIO TINTO
the case’s impact on foreign policy.” Sosa, 542 U.S. at 733
n.21. This is problematic because it is the judiciary, and not
the executive, which has the responsibility to interpret ATCA.
See generally Curtis A. Bradley, Chevron Deference and For-
eign Affairs, 86 VA. L. REV. 649, 680 (2000) (“The executive
branch, however, is not charged with administering the
[ATCA]. Rather, the statute is a direct congressional regula-
tion of federal court jurisdiction. As a result, there is no basis
in the statute for presuming a delegation of lawmaking power
to the executive branch.”). This allows the executive to cast
a case-by-case vote on an issue uniquely reserved to the court:
the question of its own subject matter jurisdiction. Justice
Powell commented on just how much confusion can result
from this executive encroachment on justiciability. “I would
be uncomfortable with a doctrine which would require the
judiciary to receive the Executive’s permission before invok-
ing its jurisdiction. . . . Such a notion, in the name of the doc-
trine of separation of powers, seems to me to conflict with
that very doctrine.” First Nat’l City Bank v. Banco Nacional
de Cuba, 406 U.S. 759, 773 (1972) (Powell, J., concurring in
the judgment); see id. (Douglas, J., concurring in the judg-
ment) (worrying that executive interference would lead to
arbitrary results as “the Court becomes a mere errand boy for
the Executive Branch which may choose to pick some peo-
ple’s chestnuts from the fire, but not others’ ”). “Resolution
of so fundamental [an] issue [as the basic division of func-
tions between the Executive and the Judicial Branches],” Jus-
tice Brennan argued, “cannot vary from day to day with the
shifting winds at the State Department. Today, we are told,
[judicial review of a foreign act of state] does not conflict
with the national interest. Tomorrow it may.” Id. at 792-93
(alterations in original) (Brennan, J., dissenting) (quoting
Zschernig v. Miller, 389 U.S. 429, 443 (1968) (Stewart, J.,
concurring)).
We have known such “shifting winds.” In In re Estate of
Marcos Human Rights Litigation, we faced the problem
squarely:
SAREI v. RIO TINTO 9027
the Department of Justice has changed its position on
whether a plaintiff such as Trajano has a cause of
action cognizable in federal court for a violation of
international law condemning torture. . . . We do not
read the executive branch’s flip on this issue as sig-
nifying so much; its change of position in different
cases and by different administrations is not a defini-
tive statement by which we are bound on the limits
of § 1350.
978 F.2d 493, 498-500 (9th Cir. 1992), cert. denied, 508 U.S.
972 (1993). More recently, we faced similar difficulties in the
Unocal litigation. See Doe I v. Unocal, 395 F.3d 932 (9th Cir.
2002), rehearing en banc granted, 395 F.3d 978 (9th Cir.
2003). While the Clinton administration informed the court
that the litigation would have no effect on U.S. foreign policy,
the Bush administration claimed that it would. See Beth Ste-
phens, Sosa v. Alvarez-Machain: “The Door Is Still Ajar”
For Human Rights Litigation in U.S. Courts, 70 BROOKLYN L.
REV. 533, 560-67 (2004). The point is not that the executive
is unstable, or that our foreign policy shifts with every politi-
cal wind, but that foreign relations is a notoriously fluid mat-
ter, subject to subtle changes in personnel, events, and
perceptions on either side of our borders. Conduct of our for-
eign relations requires constant monitoring and adjustment.
As courts, we are not well situated to make such subtle
adjustments in response to national and world events. We are,
by design, insulated from ordinary political pressures. We rely
on the parties to supply us the facts on which we base our
decisions and have no means for gathering information essen-
tial to such decisions. See Curtiss-Wright, 299 U.S. at 320
(pointing out that as between Congress and the president, the
president “has the better opportunity of knowing the condi-
tions which prevail in foreign countries”). Actions brought
under ATCA must necessarily involve reparations for past
actions, not injunctive or other equitable relief for which we
have no mechanism for enforcement outside our borders. Our
9028 SAREI v. RIO TINTO
tools for mediating disputes occurring outside of the physical
boundaries of our jurisdiction are quite limited, and our reme-
dies largely inadequate to reconcile political differences
among the parties. “[I]nternational legal disputes are not as
separable from politics as are domestic legal disputes,” Justice
Powell observed. First Nat’l City Bank, 406 U.S. at 775
(Powell, J., concurring in the judgment). The Sosa Court thus
recognized the principle of maintaining a “high bar” for inter-
national law claims, because 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.” Sosa, 542 U.S. at 727.
Exhaustion will not prevent these problems. But by requir-
ing parties to assure the court that they have pursued their
local remedies before coming to our courts, exhaustion may
sharpen the issues for us and for the executive and Congress;
just as exhaustion may develop the record and aid our pro-
cesses, it may likewise focus the political branches’s vision as
well. Where the litigant has never approached either a foreign
or his own state through its courts or other processes, he can-
not expect to receive local executive representation needed to
bring about a diplomatic resolution. By short-circuiting his
own system and going straight to foreign courts, the litigant
deprives his home government of discretion in selecting a
means to resolve the dispute. See RESTATEMENT (THIRD) OF THE
FOREIGN RELATIONS LAW OF THE UNITED STATES § 206 com-
ment c (noting that sovereignty entitles states to apply law
within their borders, and that it entitles states to choose to
“pursue legal remedies for injury” including “the right to
make diplomatic claims and to resort to arbitral or judicial tri-
bunals.”). Without an exhaustion rule, individual litigants can
single-handedly derail diplomacy, forcing us to mediate an
international dispute through a lawsuit for damages. Interna-
tional law has long recognized that exhaustion enables gov-
ernments to protect themselves from the demands of
individual litigants who seek to use international law to settle
SAREI v. RIO TINTO 9029
disputes better handled at home. The rule spares states “the
intricate and possibly expensive and embarrassing business of
sponsoring on the international plane the claims of its nation-
als which can be or could have been settled by less cumber-
some machinery” and it allows government officials to protect
national interests in using diplomacy because it affords them
“closer control over relations with the foreign state con-
cerned.” Mummery, supra, at 392-93.
C
The dispute before us is a textbook case for exhaustion.
The record is replete with contradictory warnings, misdirec-
tion, and diplomatic speak. We have conflicting statements
from the government of PNG, the latest following a change
in the administration. The most recent communique (unau-
thenticated) advises us that PNG’s relations with the United
States will be adversely affected unless we accept jurisdiction
of this case. PNG’s near-threat may itself represent a political
judgment rather than a jurisdictional fact, reflecting the new
government’s interest in having someone else solve its inter-
nal problems. We have a cryptic Statement of Interest from
the State Department, suggesting that the United States proba-
bly has a problem with our exercising jurisdiction—but it may
not. When the district court asked for clarification, the State
Department responded that it stood by its prior ambiguous
statement. The parties have no evident connection to the
United States. The plaintiffs-Bougainvilleans are largely PNG
residents; the defendant is a multi-national corporation, appar-
ently out of Great Britain but with strong ties to Australia.
The issues are complex and will require mustering facts that
are anywhere from ten to forty years old and likely ascertain-
able only in PNG, thousands of miles from the Central Dis-
trict of California, where the complaint was filed. Although
the defendant is a private corporation, the complaint alleges
the complicity of a prior PNG government, actions by the
PNG armed forces, and a history of internal ethnic and politi-
cal strife.
9030 SAREI v. RIO TINTO
Even from our limited vantage point, it is far from clear
that sending these parties home to pursue their local remedies
first will solve this matter without our mediation. But is well
worth the effort. If it does not succeed, the plaintiffs may
renew their action in our courts and, judging from our experi-
ence with domestic exhaustion, in the long run we will all be
better off for it.
V
I would affirm the judgment of the district court dismissing
this suit, but I would do so without prejudice to refiling the
suit after the plaintiffs have exhausted their local remedies. I
would thus not reach any of the issues addressed by the
majority because I regard them as premature, and I express no
opinion on the majority’s resolution of those questions.
I respectfully dissent.