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;

N No. 02-56256 ORMAN MOUVO; JOHN OSANI; BEN

KORUS; NAMIRA KAWONA; JOANNE D.C. No.  BOSCO; JOHN PIGOLO; MAGDALENE 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
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  CV-00-11695-

BOSCO; JOHN PIGOLO; MAGDALENE 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Submission Withdrawn December 11, 2003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

8936 SAREI v. RIO TINTO
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 8937
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/crossappellants. 

Sir Ninian M. Stephen, Melbourne, Australia, and Judge Stephen M. Schwebel, Washington, D.C., as amici curiae in support of the defendants-appellees/cross-appellants. 

OPINION

FISHER, Circuit Judge: 

This appeal presents questions of justiciability and exhaustion 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 mining operations and the 10-year civil conflict that followed an

SAREI v. RIO TINTO 8941
uprising at the Rio Tinto mine.1

 The plaintiffs appeal the district 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 submitted 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 nonjusticiable 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

1The plaintiffs, who appear as appellants and cross-appellees in this

appeal, will be referred to as “plaintiffs” throughout. 

8942 SAREI v. RIO TINTO
court’s conclusion that no such requirement presently exists,

and leave it to Congress or the Supreme Court to alter the status 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 violations of jus cogens norms and customary international law

including racial discrimination, environmental devastation,

war crimes and crimes against humanity, with severe repercussions 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 cop2A jus cogens norm “is a norm accepted and recognized by the international 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 general 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). 

SAREI v. RIO TINTO 8943
per concentrate and 400,000 ounces of gold annually. The

resulting waste products from the mine polluted Bougainville’s waterways and atmosphere and undermined the physical 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 sabotage that forced the mine to close. Rio Tinto sought the assistance 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 civilian 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 displaced 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 contamination 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 complaint, the district court, by letter dated August 30, 2001,

sought guidance from the State Department “as to the effect,

8944 SAREI v. RIO TINTO
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 statement 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 “perceive[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, economic, 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 violations of the laws of war, but that of the environmental claims,

only the violation of the United Nations Convention on the

SAREI v. RIO TINTO 8945
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 discrimination and UNCLOS claims under the act of state doctrine 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 evidence suggesting that the PNG government no longer opposes

the pursuit of this litigation because of a change in administration. 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.” 

8946 SAREI v. RIO TINTO
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 diplomatic and bilateral relations between our two countries nor

does it see it affecting the peace process on the island of Bougainville.” 

4) A letter to the State Department dated January 8, 2005

from John Momis, the Interim Bougainville Provincial Governor, “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 violations 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 district 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 development.” 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 jurisdiction 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

SAREI v. RIO TINTO 8947
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 paradigm[ ]” 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 district 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 purpose 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. 

4The 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. 

8948 SAREI v. RIO TINTO
Sosa, 542 U.S. at 748 (Scalia, J., concurring in part, concurring 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 violations 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 customary 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 international 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

SAREI v. RIO TINTO 8949
humanity committed at its behest by the PNG army. A predicate question is whether, post-Sosa, claims for vicarious liability 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 wellsettled 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 sufficiently 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 government 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

5We 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 “paradigm” ATCA causes of action, piracy. See Act of April 30, 1790, ch. 9

§ 10, 1 Stat. 114 (criminalizing aiding and abetting piracy). 

8950 SAREI v. RIO TINTO
plaintiffs have adequately alleged vicarious liability under the

ATCA. Based on the plaintiffs’ uncontested (for our purposes) 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 questions. 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 constitution 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 analysis in Baker v. Carr, 369 U.S. 186 (1962), where the Court

described the doctrine as a function of the separation of powers, and set forth six factors that require the dismissal of a suit

under the political question doctrine if any one of them is “inextricable from the case at bar.” 369 U.S. at 217. Four are at

issue here:

1. “a textually demonstrable constitutional commitment of the issue to a coordinate political department”; 

* * *

4. “the impossibility of a court’s undertaking inde6We do not reach the separate question, which has not been presented

to us on appeal, of what standard must govern such determinations of liability. Whether and how the plaintiffs will be able to prove their dramatic

allegations are questions for another day. 

SAREI v. RIO TINTO 8951
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 multifarious pronouncements by various departments on one

question.” 

Id.7 In the context of foreign relations, “[n]ot only does resolution 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 statement 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. AlvarezMachain, 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

7We do not address the second and third Baker factors, as Rio Tinto

does not contend they are applicable. 

8952 SAREI v. RIO TINTO
— 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 implicate the law of nations.”); Restatement (Third) of the Foreign

Relations Law of the United States § 111(2) (1987) [hereinafter 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 determined 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 contradict 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. 

SAREI v. RIO TINTO 8953
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

8As discussed infra, the act of state doctrine also involves a determination 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.”); Environmental 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 fulfillment of its responsibilities will be prejudiced by the course of civil litigation 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 implications 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 foreign policy.” Republic of Austria v. Altmann, 541 U.S. 677, 702 (2004)

(emphasis in original omitted). 

8954 SAREI v. RIO TINTO
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 policy,” 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 comity grounds. Id. at 1240. 

SAREI v. RIO TINTO 8955
the fourth through sixth Baker factors are present. Ultimately,

it is our responsibility to determine whether a political question 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 “inextricable 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 potentially 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 reason 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

10The SOI adds that “[c]ountries participating in the multilateral peace

process have raised this concern” as well. 

8956 SAREI v. RIO TINTO
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 multifarious pronouncements by various departments on one question.” 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 prefer that the suit disappear.12 Nor do we see any “unusual need

for unquestioning adherence” to the SOI’s nonspecific invocations of risks to the peace process. And finally, given the

guarded nature of the SOI, we see no “embarrassment” that

11We 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. 

12We 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. 

SAREI v. RIO TINTO 8957
would follow from fulfilling our independent duty to determine 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 non13The plaintiffs have submitted recent letters from members of PNG’s

government urging that the suit will not harm or affect the ongoing Bouagainville 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 relations between our two countries nor does it see it affecting the peace process on the island of Bougainville.” And on January 8, 2005, John Momis,

the Interim Bougainville Provincial Governor, wrote to the State Department’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 Bougainville 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 litigation 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 concerns 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. 

8958 SAREI v. RIO TINTO
justiciable political questions. There, a proposed class of

Holocaust survivors sued the Vatican Bank (a financial institution 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 branches,” whereas “the broad allegations tied to the Vatican Bank’s

alleged assistance to the war objectives of the Ustasha, including 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 distinguished Kadic, another war crimes case, in which the Second Circuit had declined to find a political question: “[T]he

claims in Kadic focused on the acts of a single individual during a localized conflict rather than asking the court to undertake 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 narrower category of war crimes committed by enemies of the

United States. Considering such claims would necessarily

14We 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 constitutional 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.

SAREI v. RIO TINTO 8959
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 cannot know why the Allies made the policy choice not to prosecute 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 dismissal 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 questioning the validity of sovereign acts taken by foreign states,

may interfere with the executive’s conduct of American foreign policy. W.S. Kirkpatrick & Co. v. Environmental Tecton8960 SAREI v. RIO TINTO
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 sovereign 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 sovereign’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 underlying the doctrine militate against its application. The

Supreme Court discussed three such policies in Sabbatino:

[1] [T]he greater the degree of codification or consensus 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 foreign relations, the weaker the justification for exclusivity 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

15Rio 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. 

SAREI v. RIO TINTO 8961
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 . . . violations 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 codified it . . . in order to exploit its natural resources, it

is clear that it was engaged in a “public and governmental” 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

16The agreement is codified in the Bougainville Copper Agreement Act.

8962 SAREI v. RIO TINTO
the Foreign Relations Law Restatement “identif[ies] jus

cogens norms prohibiting . . . systematic racial discrimination”). The complaint alleges “systematic racial discrimination” 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 sovereign act,” Siderman de Blake, 965 F.2d at 718, the alleged

acts of racial discrimination cannot constitute official sovereign 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 omitted). Without more, we cannot conclude that the UNCLOS

norms are also jus cogens norms. Therefore, although the

alleged UNCLOS violations represent violations of international 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 constituted official sovereign acts, the district court turned to Sabbatino to determine whether the act of state doctrine barred

any further consideration. See Sabbatino, 376 U.S. at 428.

SAREI v. RIO TINTO 8963
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 reliance on the SOI in the act of state context. We have concluded 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 analysis of the SOI.17

17As 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 customary 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. 

8964 SAREI v. RIO TINTO
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 resolution of cases touching the laws and interests of other sovereign 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 jurisdiction 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 international comity is a form of abstention, and we review a district 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 discrimina18Our 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 discretion review applies to dismissals on grounds of international comity as

well. 

SAREI v. RIO TINTO 8965
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 petroleum projects in Papua New Guinea.” Sarei, 221 F. Supp. 2d

at 1201.21 The district court reasoned that a conflict existed

19Once again, Rio Tinto failed to appeal the district court’s comity ruling, confining its arguments against it to its response to plaintiffs’ appeal.

See supra notes 15 & 17. 

20We 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. 

21A “compensation claim” is defined to include any claim “in connection 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.” 

8966 SAREI v. RIO TINTO
because, “[w]hile the ATCA vests jurisdiction in federal

courts to hear plaintiffs’ claims, the Compensation Act prohibits plaintiffs from filing the claims elsewhere than in

PNG.” Id. at 1201. This conclusion was not an abuse of discretion. 

Given a conflict of laws, courts then look to the nonexhaustive 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 foreseeable effect upon or in the territory; 

(b) the connections, such as nationality,

residence, or economic activity, between

the regulating state and the person principally responsible for the activity to be regulated, or between that state and those whom

the regulation is designed to protect; 

(c) the character of the activity to be regulated, 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 regulation is generally accepted; 

(d) the existence of justified expectations

that might be protected or hurt by the regulation; 

SAREI v. RIO TINTO 8967
(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 international system; 

(g) the extent to which another state may

have an interest in regulating the activity;

and 

(h) the likelihood of conflict with regulation 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 circumstances”). 

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 factors 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 plaintiffs but the lead plaintiff, Sarei, are PNG residents; and (3)

Rio Tinto, although not a PNG resident, has conducted significant business in, and has strong ties to, PNG. Id. at 1206.

Finally, it concluded that an additional factor counseled dismissing 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 determining that it should decline to hear these claims on comity

grounds. However, as with the district court’s act of state dis8968 SAREI v. RIO TINTO
missal of the UNCLOS claim, because we have rejected the

district court’s reliance on the SOI in the context of the political question doctrine, we again consider it prudent to allow

the district court to revisit its reliance on the SOI in the comity context. Further factual development may also be warranted 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 domestic 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 requirement should be read into the ATCA. Two international legal

jurists, Sir Ninian M. Stephen and Judge Stephen M. Schwe22As with the act of state claims, Rio Tinto has failed to appeal the district court’s ruling, but argues in response to the plaintiffs’ arguments that

the district court inappropriately failed to dismiss the war crimes and violations 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 failing to dismiss these claims on comity grounds. 

SAREI v. RIO TINTO 8969
bel, have filed an amicus brief supporting Rio Tinto’s position. 

The Supreme Court in Sosa hinted that it might be amenable 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 remedies available in the domestic legal system, and perhaps in other fora such as international claims

tribunals. We would certainly consider this requirement in an appropriate case. 

Sosa, 542 U.S. at 733 n.21 (internal citations omitted). 

[20] Neither the Supreme Court nor any circuit court, however, 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 Ferdinand Marcos, Human Rights Litig., 25 F.3d 1467, 1474-76

(9th Cir. 1994). Recently, Judge Cudahy of the Seventh Circuit 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

8970 SAREI v. RIO TINTO
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 demonstrates 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 otherwise 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 suggestive, offers little guidance. While it recognizes the

possibility of reading an exhaustion requirement into

the ATCA, the Court states only that it “would certainly 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 exhaustion 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 Enahoro, 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

SAREI v. RIO TINTO 8971
prolonged, inadequate or obviously futile under any applicable 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 exercise 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 statute 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

8972 SAREI v. RIO TINTO
argument, adopted by the dissent, has some appeal. It would

make recourse to other, less certain modes of analysis unnecessary. But for reasons we explain below, unlike our colleague in dissent, we are not persuaded. 

b. Legislative History

There is complete silence in the ATCA’s legislative history. 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 Statute, 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 preRevolutionary 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 dissent 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 conSAREI v. RIO TINTO 8973
trol the determination of legislative purpose.”). Put differently, 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 ‘committed 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 . . . .”) (emphasis added).23 Unlike the ATCA, the TVPA is available to

23The 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 reference 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: 

8974 SAREI v. RIO TINTO
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 legislative 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. 

24Compare 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). 

SAREI v. RIO TINTO 8975
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.”) (internal citations and quotations omitted). And if Congress understood 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. Taylor, 529 U.S. 362, 404 (2000) (“[T]he cardinal principle of

25Congress also included an exhaustion requirement in another statute

involving claims of human rights violations against foreign states, the Foreign 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 reasonable opportunity” to arbitrate the claim.” 28 U.S.C. § 1605(a)(7)(B)(i). 

8976 SAREI v. RIO TINTO
statutory construction [is] that courts must give effect, if possible, 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 remedies 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 exhaustion)], 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 satisfaction 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 torture victims bring suits in the United States against

their alleged torturers only as a last resort. Usually,

the alleged torturer has more substantial assets outside the United States and the jurisdictional nexus is

easier to prove outside the United States. Therefore,

SAREI v. RIO TINTO 8977
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 committee 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

26Despite 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 remedies for U.S. citizens never available to them under the ATCA. Second,

aliens had only what Congress considered an ambiguous right to bring torture 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 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 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.

8978 SAREI v. RIO TINTO
[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 understanding in 1991 with respect to the ATCA is unclear. Congress may have affirmatively declined to add an exhaustion

requirement to the ATCA while incorporating such a requirement in the TVPA. Or Congress may have intended or understood exhaustion to apply to international law-based causes of

action across-the-board.27 But given (i) the lack of express historical or contemporary congressional intent regarding

exhaustion under the ATCA, (ii) Congress’ recent pronouncement 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. 

27The 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 international law norms, failing to read exhaustion into the ATCA would not

violate those norms. 

28The dissent is incorrect in its assertion that we “infer[ ] that exhaustion, 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

SAREI v. RIO TINTO 8979
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 requiring exhaustion as an exercise of judicial discretion. The dissent 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 overstates the clarity of his case and underplays plausible counterarguments and real ambiguities in international and domestic

law. Whether one finds the arguments for or against exhaustion 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 question 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 congressional 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). 

8980 SAREI v. RIO TINTO
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 exercise of our judicial discretion. Cf. Patsy, 457 U.S. at 513

(holding that, in an administrative law setting, “policy considerations alone cannot justify judicially imposed exhaustion

unless exhaustion is consistent with congressional intent”). 

The central argument Rio Tinto, amicus curiae and the dissent advance to justify exercising judicial discretion is that

exhaustion of local remedies is an established aspect of international 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, bilateral 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. International agreements providing remedies to individuals also generally require that the individual first exhaust domestic

remedies.”) (internal citations omitted). But see Foreign Relations Law Restatement § 703, cmt. d (“The individual’s failure 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 violations, 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 remedies.”) (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

SAREI v. RIO TINTO 8981
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 identified 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 analysis is less cohesive and unambiguous than it is made out to

be, as the following examples illustrate. First, the international 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 InterAmerican Court of Human Rights — which were created

through treaties and with the consent of sovereign countries.

Even before exhaustion was written into human rights treaties, the norm evolved in the context of international fora and

was based on assertions of national sovereignty. See Chittharanjan 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 international law through the vehicle of a civil suit. Although consideration of other countries’ sovereignty is relevant to our

8982 SAREI v. RIO TINTO
inquiry here as it was in our earlier consideration of act of

state doctrine and international comity, the exhaustion limitation 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 international 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 subsequent 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 substantive and procedural but as solely procedural in character.”

(emphasis added)). 

29The dissent’s suggestion that “[n]othing in Sosa or ATCA indicates

that this distinction [between domestic and international tribunals] matters,” (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 international and domestic spheres, they are not identical, and the international

law of exhaustion has developed in part as a result of uniquely international concerns. 

SAREI v. RIO TINTO 8983
The substance-procedure distinction is important in this

case because Sosa held that the ATCA “is a jurisdictional statute 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 international law violations in modern human rights treaties contain 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 Protocol 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 submit a written communication to the [Human Rights] Committee 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 substantive equivalents such as torture, extrajudicial killing,

genocide, slavery, prolonged arbitrary detention and systematic racial discrimination. See Foreign Relations Law Restatement § 702 (cited with approval by Sosa, 542 U.S. at 737).

The Supreme Court has not addressed whether the methodology it employed in Sosa to identify some substantive international norms as falling within the ATCA’s jurisdictional grant

is applicable to procedural and other nonsubstantive customary 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 problematic. See id. § 404 cmt. a (“[I]nternational law permits any

state to apply its laws to punish certain offenses although the

8984 SAREI v. RIO TINTO
state has no links of territory with the offense, or of nationality with the offender (or even the victim). Universal jurisdiction over the specified offenses is a result of universal

condemnation of those activities and general interest in cooperating to suppress them, as reflected in widely accepted international agreements and resolutions of international

organizations. These offenses are subject to universal jurisdiction as a matter of customary law.”). 

Third, the argument that requiring exhaustion will improve

compliance with international human rights law in other countries 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 frequency, however, this argument remains fairly speculative

and most often lacks any empirical data showing improvements in the quality or accessibility of local remedies as a

result of the application of the local remedies rule at the international 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 America, 2 Chi. J. Int’l L. 1, 4 (2001); see also id. at 24-25, 30 (discussing the possibility that the arrest and near trial of General

Pinochet in Europe and European court cases against Argentine 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 conSAREI v. RIO TINTO 8985
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 commented on the use and purpose of the ATCA.31 Recognizing

30This premise is consistent with the rules of the two ad hoc international 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, available 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. 

31Many 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 statute — 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 accomplish quite so much as the dissent predicts. 

8986 SAREI v. RIO TINTO
the delicate balance between judicial innovation and the “discretion 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 guidance 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). Notwithstanding 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

32Sosa, rather than the administrative law cases relied upon by the dissent, 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 uncritically transferred to the international law context. 

SAREI v. RIO TINTO 8987
Congress or the Supreme Court to take the next step, if warranted.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 further 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 dismissal 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. 

33Cf. 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 upsetting what the Court of Appeals took to be our settled precedents, nor buried the issue by proceeding in a summary fashion. By adhering to its

understanding of precedent, yet plainly expressing its doubts, it facilitated

our review.”)

8988 SAREI v. RIO TINTO
Volume 2 of 2

SAREI v. RIO TINTO 8989
BYBEE, Circuit Judge, dissenting: 

In Sosa v. Alvarez-Machain, the Supreme Court addressed

arguments that “international law requires that before asserting a claim in a foreign forum, the claimant must have

exhausted any remedies available in the domestic legal system.” 542 U.S. 692, 733 n.21 (2004). Although declining to

do so in Sosa, the Court declared that it “would certainly consider this requirement in an appropriate case.” Id. This is such

a case.1

Plaintiffs-Bougainvilleans alleged that Rio Tinto, a multinational British corporation, violated various jus cogens,

including war crimes, crimes against humanity, racial discrimination, and environmental despoliation. They also allege

that Rio Tinto directed these actions through the government

of Papua New Guinea (“PNG”). These actions took place

1This 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 question doctrine. See id. at 538, 541 n.4 (“by agreement of the parties the district court limited its discussion to the issue of whether the Holocaust

Survivors’ claims should be dismissed under the political question doctrine,” 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 Survivors may indeed face an uphill battle in pursuing their claims.” Id. at 539.

SAREI v. RIO TINTO 8991
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 Bougainville 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 thenPNG government that litigation in U.S. courts had “potentially 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 unauthenticated, that the new PNG government regards this suit as

“help[ing to] facilitate the process . . . of rectifying . . . historic 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 conclude 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 political 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 foreign 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. 

8992 SAREI v. RIO TINTO
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 interference in state proceedings.” Justices of Boston Mun. Court

v. Lydon, 466 U.S. 294, 333 n.3 (1984) (Stevens, J., concurring in part and concurring in the judgment); see also Carr v.

Pac. Mar. Ass’n, 904 F.2d 1313, 1321 (9th Cir. 1990) (applying an exhaustion requirement that “is a judge-made requirement, 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 prerequisite 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.

2Statutorily 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. Rumsfeld, 572 F.2d 250, 252 (9th Cir. 1978). 

SAREI v. RIO TINTO 8993
241, 251 (1886), we have required exhaustion in other contexts 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 authority of tribal courts,” and to “reflect[ ] the fact that Indian

tribes retain ‘attributes of sovereignty over both their members 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 petitioners 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 “considerations of comity direct[ed] that tribal remedies be exhausted” 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 administrative remedies as “ ‘an expression of executive and administrative 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. Shalala, 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 implicating 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 administrative system important opportunities “to make a fac8994 SAREI v. RIO TINTO
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 decisionmaking 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 considerations 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 statutorily 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

SAREI v. RIO TINTO 8995
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 dispose 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 forbid exhaustion—because otherwise we may consider the wisdom of the rule for ourselves. “Unlike other statutory

questions, exhaustion is ‘a rule of judicial administration,’ and

unless Congress directs otherwise, rightfully subject to crafting by judges.” Patsy v. Bd. of Regents, 457 U.S. 496, 518

(1982) (White, J., concurring in part) (quoting Myers v. Bethlehem 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 exhaustion 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 remedies 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. 

8996 SAREI v. RIO TINTO
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 giving 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 perfectly 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 requirement 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

SAREI v. RIO TINTO 8997
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 apparent authority, or color of law, of any foreign nation . . . subjects 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 unambiguous and modern basis for a cause of action,” thus eliminating 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 international 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

4The 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 violations 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. 

8998 SAREI v. RIO TINTO
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 violation of other jus cogens, we might have expected Congress

to comment on the new requirement. Instead, Congress simply 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 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, 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 EdwardsBork 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 comparison 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

SAREI v. RIO TINTO 8999
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 (holding 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 tribunals 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 citizens suing in their own national courts. 

9000 SAREI v. RIO TINTO
While TVPA evidences Congress’s recognition of exhaustion in international law, we should not draw a contrary inference from the absence of an express exhaustion requirement

in ATCA. As I have mentioned, TVPA is not a jurisdictioncreating 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 jurisdiction by Article III courts. At the same time, ATCA acknowledges 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 district courts would recognize private causes of action for certain 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 requirement if international law would recognize exhaustion of remedies 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 harmonize ATCA with the more explicit requirements of TVPA. As

Judge Cudahy has explained, “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 TVPA (with which it is

SAREI v. RIO TINTO 9001
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 recognizing 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). 

7The majority argues that because Sosa urges caution in expanding the

causes of action available under ATCA, judicial caution precludes recognition 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 conception 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 consequences.” 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. 

9002 SAREI v. RIO TINTO
nations” as long as they “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

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 tribunals. 

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, PRINCIPLES 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),

SAREI v. RIO TINTO 9003
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 remedies 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 responsibility 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 Relating 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

8The 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. CANÇADO TRINDADE, THE APPLICATION OF THE RULE OF EXHAUSTION OF LOCAL REMEDIES 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 century 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”). 

9004 SAREI v. RIO TINTO
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 called for in a formal agreement.9

 The International Court of Justice 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 proceed, 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 international 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

9Like its U.S. domestic counterpart, the rule of exhaustion of local remedies is largely judge-made. “[P]erhaps more so than any other rule of

international law,” it “undoubtedly grew up under the nurturing of professional administrators.” Mummery, supra, at 393. The law continues to be

“sheltered from the harsher political winds” that shape much of international law because its development rests in the hands of judges. Id.

SAREI v. RIO TINTO 9005
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 Concerning 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 exhaustion 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 Exhaustion 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 Fundamental Freedoms, International Convention on the Elimination 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 communication is “that the remedies under domestic law have been pursued and exhausted in accordance with generally recognized

principles of international law”); Council of Europe, European 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, Protocol 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 remedies have been exhausted, according to the generally recognised rules of international law . . . .”); International

Convention on the Elimination of All Forms of Racial Discrimination, 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

9006 SAREI v. RIO TINTO
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 remedies, if they exist, have been exhausted, unless it is obvious

to the Commission that the procedure of achieving these remedies would be unduly prolonged.”). Exhaustion is so well

established that the failure to include an exhaustion requirement may call the viability of the agreement into question. 

The local remedies rule [adopted in the UN Covenant 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 Commission, delegates were still engaged in “the long-standing

game of debating whether the rule of exhaustion of local remedies is substantive or procedural,” “an issue on which much

intellectual energy has been wasted.” Robert Rosenstock &

Margo Kaplan, Current Development: The Fifty-Third Session 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

SAREI v. RIO TINTO 9007
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). Codifications of the rule have largely avoided the question. See

United Nations Int’l Law Comm’n, Second Report on Diplomatic 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 contends 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 Responsability, ¶ 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

9008 SAREI v. RIO TINTO
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 individuals” 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 recognized that “the international breach does not come into existence 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 remedies 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 concerning 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 International 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 Railway (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

SAREI v. RIO TINTO 9009
claim. See Maj. op. at 8983 and sources cited therein. According 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 Amador); 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 imputable 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 remedies in order to impute responsibility to the State. . . .

[T]he rule of exhaustion of local remedies in such

circumstance is procedural . . . .” 

9010 SAREI v. RIO TINTO
Accordingly, the rule of exhaustion of local remedies 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 Commission (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 wellestablished part of the law of nations and ignoring it contravenes those norms. If it is purely substantive, then it is unambiguously 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

10The 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 Commission’s current draft articles currently stop short of declaring when international 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 Internationally 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 requirement.” RESTATEMENT (SECOND) OF THE FOREIGN RELATIONS LAW OF THE

UNITED STATES § 206 comment d (1965) (emphasis added). 

11I believe that Sosa’s rule would incorporate even procedural exhaustion, 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

SAREI v. RIO TINTO 9011
say with certainty whether exhaustion is a substantive or a

procedural requirement. But we can say that it certainly qualifies 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 tribunals. 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. 

9012 SAREI v. RIO TINTO
or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence 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, restraining, 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 wellestablished 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 domesSAREI v. RIO TINTO 9013
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 remedies 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., concurring 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 exception has been recognized by the American Convention on

Human Rights, which excuses exhaustion in cases of “unwarranted 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 Jurisdiction Under the Torture Victim Protection Act, 19 COLUM.

HUM. RTS. L. REV. 23 (1987) (discussing exhaustion provisions 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 remedies 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, inadequate, or obviously futile.” S. REP. NO. 102-249, pt. 4, at 10

9014 SAREI v. RIO TINTO
(1991). According to the Judiciary Committee, exhaustion is

not difficult to show. “[I]n 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 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 “unfairness 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 officials, agents and proteges, a highly specialized kind of admin12Judicial inquiry into available exceptions in ATCA cases would be

similar to that performed when applying the doctrine of forum non conveniens, 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 McDonnell 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”). 

SAREI v. RIO TINTO 9015
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 administrative organization, namely, domestic administrative law.” Id. It

is appropriate that we require exhaustion here, where our proceedings would result in a premature and unjustified interference 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 resolution, such as commissions or political accords.13

“ ‘Comity,’ in the legal sense, is neither a matter of absolute

obligation, on the one hand, nor of mere courtesy and good

13I 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. 

9016 SAREI v. RIO TINTO
will, upon the other. But it is the recognition which one nation

allows within its territory to the legislative, executive or judicial 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 recognition 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 possibility 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 undermine local governments, who may be seen as weak or unresponsive 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 unnecessary publicity. See Steven W. Yale-Loehr, Note, The Exhaustion 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 intervention of outsiders is avoided (it is noteworthy that any intervention, no matter how skillful and tactful, is invariably disliked

14The 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 requiring 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 intervention on behalf of every foreign plaintiff who shops a claim in American

courts. 

SAREI v. RIO TINTO 9017
as such); and it is possible to avoid the publication of the dispute 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 conflicts 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 Udombana, 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 international system because 

the local remedies rule is really a conflict rule. It is,

when properly constructed, a rule for resolving conflicts of jurisdiction between international law and

municipal tribunals and authorities; the rule determines 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

9018 SAREI v. RIO TINTO
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 pronouncing 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 government’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 commentator 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 “acknowledges the commonsense notion of dispute resolution that an

agency ought to have an opportunity to correct its own mistakes with respect to the programs it administers before it is

haled into federal court.” McCarthy, 503 U.S. at 145; see also

SAREI v. RIO TINTO 9019
Zara, 383 F.3d at 931 (“The policy underlying the exhaustion

requirement is to give an administrative agency the opportunity 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 opportunity actually to repair the injury sustained.” Mummery,

supra, at 402. The exhaustion rule is part of a concerted international 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 process 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 international 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. Bjorklund, 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 Norwegian 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 exhaus9020 SAREI v. RIO TINTO
tion requirements of TVPA, “[t]his requirement ensures that

U.S. courts will not intrude into cases more appropriately handled 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, Environmental 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,

15The 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 effectiveness beyond a reasonable doubt before considering scholars’ arguments 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 remedies, 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 litigation 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). 

SAREI v. RIO TINTO 9021
supra, at 473 (noting that “the greater suitability and convenience of national courts as forums for the claims of individuals 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 criminal 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 diplomatic turmoil.” Beth Stephens, Translating Filartiga: A Comparative 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, implying that the harms inflicted can be compensated through a

simple monetary payment.” Id.17

16Failure 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 solution 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). 

17One 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. 

9022 SAREI v. RIO TINTO
Finally, in domestic administrative law, we require exhaustion because it promotes more accurate adjudication performed 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 development of a more complete record. See Ruviwat, 701 F.2d at 845

(“[T]he requirement of exhaustion of remedies will aid judicial review by allowing the appropriate development of a factual record in an expert forum . . . .”). Similarly, in cases

arising under ATCA, local expertise and proximity to witnesses and physical evidence may foster more accurate factfinding. “National courts, familiar with local conditions and

possessing easy access to witnesses, can usually settle disputes 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 preserve 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 remedies. But although the Constitution does not demand that we

Steven R. Ratner, New Democracies, Old Atrocities: An Inquiry In International 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 apartheid, 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. Schabas, Genocide Trials and Gacaca Courts, 3 J. INT’L CRIM. JUST. 879

(2005). 

SAREI v. RIO TINTO 9023
abstain, separation of powers principles should inform our

prudential judgment concerning exhaustion. In many respects

exhaustion resembles the doctrines of political question, comity, 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 doctrine: 

We once viewed the doctrine as an expression of

international law, resting upon the highest considerations of international comity and expediency. We

have more recently described it, however, as a consequence of domestic separation of powers, reflecting 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 foreign 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 government in the field of international relations”) (internal quota9024 SAREI v. RIO TINTO
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 exercise 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 aptitude, 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 Judiciary 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 jurisdiction 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 exercise 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 sensitive inquiries into the internal affairs of other countries. See

Sosa, 542 U.S. at 733 (noting pending cases which the government 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 government 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 jurisdiction 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

SAREI v. RIO TINTO 9025
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 Foreign 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 regulation 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 invoking its jurisdiction. . . . Such a notion, in the name of the doctrine 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 judgment) (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 people’s chestnuts from the fire, but not others’ ”). “Resolution

of so fundamental [an] issue [as the basic division of functions between the Executive and the Judicial Branches],” Justice 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: 

9026 SAREI v. RIO TINTO
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 signifying so much; its change of position in different

cases and by different administrations is not a definitive 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 Stephens, 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 political wind, but that foreign relations is a notoriously fluid matter, subject to subtle changes in personnel, events, and

perceptions on either side of our borders. Conduct of our foreign 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 essential 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 conditions 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

SAREI v. RIO TINTO 9027
tools for mediating disputes occurring outside of the physical

boundaries of our jurisdiction are quite limited, and our remedies 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 international 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 requiring 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 processes, 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 cannot 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 comment 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 tribunals.”). Without an exhaustion rule, individual litigants can

single-handedly derail diplomacy, forcing us to mediate an

international dispute through a lawsuit for damages. International law has long recognized that exhaustion enables governments to protect themselves from the demands of

individual litigants who seek to use international law to settle

9028 SAREI v. RIO TINTO
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 nationals which can be or could have been settled by less cumbersome 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 concerned.” Mummery, supra, at 392-93. 

C

The dispute before us is a textbook case for exhaustion.

The record is replete with contradictory warnings, misdirection, and diplomatic speak. We have conflicting statements

from the government of PNG, the latest following a change

in the administration. The most recent communique (unauthenticated) 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 internal problems. We have a cryptic Statement of Interest from

the State Department, suggesting that the United States probably 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, apparently 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 ascertainable only in PNG, thousands of miles from the Central District 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 political strife. 

SAREI v. RIO TINTO 9029
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 experience 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. 

9030 SAREI v. RIO TINTO