Washington International Law Journal


In Sarei v. Rio Tinto, the Ninth Circuit reversed the dismissal of Papua New Guinea residents’ alleged human rights violations and environmental tort claims under customary international law and the Alien Tort Claims Act. The Ninth Circuit decided that jus cogens norms precluded application of the Act of State Doctrine. The United States Supreme Court in Banco Nacional de Cuba v. Sabbatino decided that U.S. courts could apply the Act of State Doctrine, absent an unambiguous and controlling international rule of law, to avoid judging foreign sovereigns’ acts within their own territories. This comment argues that crystallized legal norms that meet Sosa v. Alvarez-Machain’s standard, but have not yet attained jus cogens status, also cannot be barred by the doctrine because they constitute an unambiguous rule of law. Furthermore, courts violate separation of powers principles when they choose not to resolve properly presented claims on the merits because judicial resolution potentially could interfere with the political branches’ conduct of foreign relations. The courts do not impermissibly interfere in foreign relations when they apply international law, whether treaty provisions or customary norms, created by the political branches. If judicial resolution is not preferred, the political branches may exercise their constitutional powers to conclude an international agreement that resolves the litigants’ claims. Courts further considering Papua New Guinea residents’ claims under the Alien Tort Claims Act should not apply the Act of State Doctrine where crystallized legal norms exist, because doing so would be contrary to the logic of Sabbatino.

First Page