Sarei v. Rio Tinto PLC.

AMENDED ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

MORROW, District Judge.

Plaintiffs, who are current and former residents of the island of Bougainville in Papua New Guinea, filed this putative class action against defendants Rio Tinto pic and Rio Tinto Limited under the Alien Tort Claims Act, 28 U.S.C. § 1350 . Plaintiffs allege that defendants’ mining operations on Bougainville destroyed the island’s environment, harmed the health of its people, and incited a ten-year civil war, during which thousands of civilians died or were injured. They assert that defendants are guilty of war crimes and crimes against humanity, as well as racial discrimination and environmental harm that violates international law. Defendants have moved to dismiss the complaint, arguing that the court lacks subject matter jurisdiction and that plaintiffs have failed to state a claim upon which relief can be granted. Defendants contend alternatively that the action should be dismissed on

forum non conveniens

grounds, because its raises questions that are nonjusticiable under the act of state or political question doctrines, and because the court should

*1121

abstain under the doctrine of international comity.

I. FACTUAL AND PROCEDURAL BACKGROUND

1

Bougainville is an island in the South Pacific located just off the main island of Papua New Guinea (“PNG”).

2

Like other regions of PNG, Bougainville is rich in natural resources, including minerals such as copper and gold.

3

Bougainville’s rivers are also a key natural resource.

4

Plaintiffs allege that, for many years, one of these— the Jaba River — “was a major source of food for many residents of Bougainville, and use of the riches of the Jaba River was an integral part of the way of life of many.”

5

Defendants Rio Tinto pic,

6

a British corporation, and Rio Tinto Limited,

7

an Australian corporation (collectively “Rio Tinto Group” or “Rio Tinto”), are part of an international mining group headquartered in London, which operates over sixty mines and processing plants in forty countries worldwide, including the United States.

8

During the 1960’s, the Rio Tinto Group decided to build a mine in the village of Panguna on Bougain-ville.

9

Plaintiffs allege that Rio Tinto needed the cooperation and assistance of PNG’s government to do so, because constructing the mine necessitated displacing villages and destroying massive portions of the rain forest.

10

To obtain the required assistance, Rio Tinto allegedly offered the government 19.1% of the mine’s profits.

11

PNG accepted, and plaintiffs allege that thereafter, the mine became “a major source of income for PNG and provided [an] incentive for the PNG government to overlook any environmental damage or other atrocities Rio committed.” They also assert that “[t]he financial stake of the PNG government effectively turned the copper mine into a joint venture between PNG and Rio [Tin-to] and allowed Rio [Tinto] to operate under color of state law.”

12

To hold its interest in and operate the Panguna Mine, Rio Tinto established Bou-gainville Copper Limited (“BCL”), a Pa-pua New Guinea company and a majority-owned subsidiary of Rio Tinto Limited.

13

So that it could operate the mine, the Australian Colonial Administration

14

granted BCL leases over 12,500 hectares

*1122

of Bougainvillean land.

15

In 1967, BCL and the PNG government entered into a formal agreement “concerning the development of certain mineral deposits in Bou-gainville,” which was ultimately codified as the “Mining (Bougainville Copper Agreement) Act of 1974” (“the Copper Act”).

16

Among other things, the Copper Act regulated the disposal of waste from mining operations, and vested in PNG’s Department of Minerals and Energy the power to control and monitor pollution generated by the mine.

17

A. Impact Of The Mine On The People And Environment Of Bou-gainville

Plaintiffs assert that, from the inception of the project, Bougainville residents resisted Rio Tinto’s efforts to build the mine. When a Rio Tinto exploration team set up camp on Bougainville in 1965, islanders allegedly destroyed the camp and expelled the team.

18

The Australian government purportedly responded by imprisoning approximately two hundred Bougainville-ans.

19

Islanders also refused to surrender land to Rio Tinto. A group of Bougainvil-leans — the Rorovana — were allegedly told that if they did not accept Rio Tinto’s offer of $105 per acre and $2 per coconut tree, their land would be taken without compensation.

20

When the Rorovana refused, plaintiffs assert that

“[o]ne hundred riot police, especially trained and equipped by the Australian government, were flown to Bougainville to help the surveyors mark out the areas of land owned by the Rorovana people that [BGL] wanted. On August 1, 1969, surveyors, supported by police wearing gas masks and carrying truncheons, drove in the first concrete peg.... On August 5, 1969, riot police carrying batons, shields, rifles and respirators attacked a group of about 65 unarmed villagers, men, woman and children. The police fired a barrage of 150 tear gas cannisters at them, yet the people stood firm. Then the police charged them with their batons, clubbing both men and women who were forced off their land.”

21

In addition to forcing many villagers off their land, Rio Tinto allegedly destroyed huge portions of the rain forest while constructing the mine.

22

By 1972, construction was complete, and operations at the Panguna Mine commenced.

23

The mine pit was approximately one-half kilometer deep and seven kilometers wide.

24

Plaintiffs allege that each day, approximately 300,000 tons of ore and waste rock were blasted, excavated, and removed from the pit,

25

producing 180,000

*1123

tons of copper concentrate and 400,000 ounces of gold annually.

26

Jean Michael Cousteau, who observed the mine in 1988, described it as follows:

“Surrounded by dense rain forest and tropical stillness lies one of the world’s largest man-made holes in the ground. When the ore is completely extracted, the pit will measure nearly 8,000 feet across and around 1,200 feet deep. It would take two Golden Gate Bridges to span the hole, and if the Empire State Building were set at the bottom, only the antenna on top would rise above the rim of the mine.... Though it amounts to a vast treasury of copper ... the ore is extremely low grade.... Thus, to make the mine profitable, it must turn out a tremendous volume. That requires an operation using immense equipment and 4,000 people working in three eight-hour shifts seven days a week.”

27

Within ten years of commencing operations, the Panguna Mine was one of the largest copper mines in the world. Plaintiffs allege that it was highly profitable for Rio Tinto.

28

Indeed, they contend that, by the early 1980s, BCL was responsible for approximately 23% of the Rio Tinto Group’s profit despite the fact that it represented only 9.4% of the group’s total assets.

29

Plaintiffs assert that, in addition to copper and gold, the mine produced more than one billion tons of waste.

30

After the waste (i.e., waste rock and tailings) was removed from the mine pit, it was allegedly deposited into the Kawerong-Jaba river system.

31

Plaintiffs contend that, in this fashion, fertile river valleys were turned into wasteland, entire forests died, and three thousand hectares of land were completely destroyed.

32

They further contend that a significant portion of the tailings placed in the Jaba River were ultimately deposited into Empress Augusta Bay, destroying the fish that were a major food source for the Bougainvilleans.

33

Mining operations in Bougainville allegedly polluted not only the island’s waterways, but also its atmosphere.

34

Plaintiffs assert that “[d]ust clouds from the mining operations combined with emissions from the copper concentrator, [and] created a poisonous mix which polluted the air.”

35

As a result of this air pollution, the number of Bougainvilleans suffering from respiratory infections and asthma purportedly increased.

36

Additionally, pollution from the mine allegedly changed the island’s climate, damaged its crops, caused fish to develop ulcerations and die, and forced many animals out of their habitats.

37

The diminished food supply that resulted purportedly caused many Bougainvilleans to suffer health problems.

38

*1124

Plaintiffs contend that Rio Tinto’s operation of the Panguna Mine impacted the entire island of Bougainville. They assert that Rio Tinto not only destroyed the land and polluted the environment, but also undermined the physical and mental health of the islanders. Plaintiffs allege:

“Deaths from upper respiratory infections, asthma and TB increased. Many children had impaired hearing due to chronic middle ear infections. Coughs and colds became commonplace, especially among children. Obesity, particularly among women, became common when they had to abandon their traditional diet for European tinned and packaged foods .... A deep sense of social malaise set in which expressed itself in clan tensions, depression, alcohol abuse, rage, traffic accidents and incidents of violence — all distress signals of people severed from then roots.”

39

Stated otherwise, plaintiffs maintain, Rio Tinto’s destruction of the island’s land and environment “ripped apart” the culture, economy, and life of Bougainville.

40

B. Rio Tinto’s Employment Practices

Between 1966 and 1971, approximately 6,300 people, primarily construction workers, traveled to Bougainville to work in the mine.

41

Plaintiffs contend the fact that a majority of the persons working at the mine were not local islanders caused a great deal of tension. They assert that local Bougainvilleans, who were black, were paid significantly lower wages than white workers recruited off island.

42

After the Australian Minister of Labor visited the mine in 1969, he purportedly accused Rio Tinto of paying black workers “slave wages.”

43

Plaintiffs allege that Rio Tinto paid black workers less because it regarded them as inferior and expendable.

44

Indeed, they contend, it was the notion that Bougainvilleans were an inferior people that caused Rio Tinto to “treat[ ] the land with wanton disregard.”

45

C. Events Leading To The Mine’s Closure And Civil War

Plaintiffs allege that, by 1988, operations at the Panguna Mine had severely impacted Bougainville’s environment. In March of that year, Perry Zeipi, PNG’s Minister of the Environment, visited Bougainville and purportedly described the amount of pollution in the Jaba River as “dreadful and unbelievable.”

46

Minister Zeipi allegedly observed that all aquatic life had been destroyed by chemicals and waste dumped into the Jaba River, and that the water was no longer safe for drinking or bathing.

47

Zeipi purportedly expressed regret that his department could do nothing about this environmental destruction since the Copper Agreement gave the Department of Minerals and Energy power to control and monitor environmental pollution.

48

At approximately the same time, the Panguna Land Owners Association (“PLOA”) allegedly organized a march against BCL.

49

Five hundred landowners participated, and presented a petition to

*1125

BCL “demanding localization of employment and greater control of environmental degradation and pollution.”

50

Plaintiffs assert that, when BCL failed to respond to the petition, the PLOA organized a one-day sit-in at the mine, which temporarily halted mining operations.

51

Thereafter, BCL hired a consulting company to conduct a survey regarding the effects of the mine on Bougainvilleans’ health and the island’s environment.

52

When the consulting company issued its report, Francis Ona, PLOA’s secretary and a former BCL surveyor, declared it a “whitewash.”

53

The report allegedly skirted many crucial issues, including the effect of chemical pollutants on the island’s food crops.

54

Plaintiffs allege that, as a result, militant Bougainvilleans stole dynamite from BCL, blew up the mine’s infrastructure and machinery, and engaged in other acts of sabotage.

55

The violence escalated, ultimately forcing the mine to close and provoking a popular uprising on the island.

56

Plaintiffs allege that the uprising was the result of many years’ frustration, as Bougainvilleans watched their homeland being destroyed. They quote the following news report:

“Australia, and later Papua New Guinea, ignored local protests and gave a subsidiary of the British mining giant Rio Tin-to Zinc (now just ‘Rio Tinto’) the go-ahead to excavate the world’s largest open-cast copper mine in the middle of the island in 1967; it opened in 1972. The population galvanized as never before. Bougainvilleans watched their land dying beneath them as over a billion tons of toxic waste [were] dumped into the river system. Compensation and jobs at the mine did little to make them feel better about it, and after 16 years of frustrated protest the landowners, led by Francis who was also a surveyor at the mine, decided to take matters into their own hands.”

“They decided to close it down by carrying out explosive attacks of sabotage upon its machinery and infrastructure. As the violence escalated, Papua New Guinea, panicked about the loss of export earnings, sent in the Defense Force. The Bougainville Revolutionary Army consolidated itself and secession was called for. War was on.”

57

On November 24, 1988, a few days after the first attack on the Panguna Mine, BCL chief Don Carruthers allegedly warned the PNG government that “Rio would seriously reconsider future investment in PNG in light of ... the acts of terrorism on Bou-gainville resulting from ... unrealistic expectations on the part of landowners.”

58

Citing this comment, plaintiffs assert that, essentially, Rio Tinto threatened to close the mine and withdraw all other investment in PNG if the government did not quell the uprising so that the company could recommence operations.

59

They allege that, given the mine’s economic importance to PNG,

60

Rio Tinto knew that its

*1126

requests would be “taken as commands by the PNG government,” and maintain that Rio Tinto “understood and intended that this ultimatum [would] result in military action by PNG ... even if it meant the death and/or injury of residents.” Plaintiffs further assert that Rio Tinto knew “it had a great deal of control over the situation [i.e., that] if Rio did not direct and/or encourage a military response, ... none would have been initiated.”

61

Allegedly acceding to Rio Tinto’s requests, PNG sent a defense force to Bou-gainville in early 1989 to put down the uprising.

62

Plaintiffs assert that Rio Tinto assisted the PNG military by supplying helicopters and other vehicles, transporting troops to the island, and providing economic assistance.

63

The PNG army mounted an attack on February 14, 1990— the St. Valentine’s Day massacre — in which many civilians, including a Uniting Church pastor, were killed.

64

Plaintiffs contend that, in response to this massacre, the Bougainville Revolutionary Army (“BRA”) consolidated, Bougainvilleans called for secession from PNG, and “the struggle to close the mine became a struggle for independence”

65

that continued for almost a decade.

D. Conduct During The War

Plaintiffs allege that, during the ten-year struggle for independence, PNG, at the behest of its joint venture partner, Rio Tinto, committed atrocious human rights abuses and war crimes. In April 1990, the PNG government allegedly imposed a blockade on Bougainville to isolate the island and force the revolutionaries to surrender.

66

Plaintiffs assert that Rio Tinto conspired with PNG to impose the blockade, and advocated that it be maintained because it believed the tactic would allow PNG to win the war and reopen the mine.

67

A top Rio Tinto official purportedly “encouraged continuation of the blockade to ‘starve the bastards out some more [so] they [would] come around.’ ”

68

In addition, the Australian government provided assistance, donating speedboats to PNG to tighten the blockade.

69

Plaintiffs allege that the blockade “prevented medicine, clothing and other essential supplies from reaching the people [of Bougainville].... ” They state that “[t]he local Red Cross in central Bougainville estimated in November 1992 that the blockade, through lack of medicines and vaccines, had caused the death of more than 2,000 children in its first two years of operation.”

70

Plaintiffs contend that, as time passed, the number of deaths from preventable diseases grew.

71

One of the few reporters who witnessed the events in Bougainville allegedly noted:

“Some [Bougainvilleans] were killed in combat or in civilian massacres by the PNGDF, but most died because of the lack of basic medical treatment caused by the blockade on an island where all hospitals were soon destroyed and all qualified doctors dead or gone. When we visit, everyone has a horror story to remember — a wife and baby dying in an

*1127

unattended jungle birth, a husband thrown into the sea from an Australian-supplied helicopter, a child hit by a dumdum bullet, a daughter raped and then mutilated by the PNGDF. Yet no one is especially willing to tell such stories. Bougainville is winning now and they are more eager to show us their resourcefulness.”

72

Plaintiffs allege that, as of 1997, an estimated 10,000 Bougainvilleans had died as a result of the blockade.

73

In addition to denying Bougainvilleans access to medical and other essential supplies, plaintiffs assert that the blockade prevented news of events on Bougain-ville — particularly human rights violations committed by PNG and Australian forces — from reaching the public.

74

They allege that, throughout the conflict, the PNGDF, with the assistance of Australian pilots and helicopters, attacked Bougainvil-lean towns and villages with mortar bombs, guns, grenades, and ammunition,

75

and state: “In the absence of public scrutiny, PNG troops continued to commit human rights violations with impunity.”

76

The human rights violations and war crimes purportedly committed include: “(a) Aerial bombardment of civilian targets; (b) Wanton killing and acts of cruelty; (c) Burning of houses and villages; (d) Making the civilian population and individual civilians objects of attack; (e) Outrages upon personal dignity, acts of rape, humiliating and degrading treatment; (f) Perfidious use of the Red Cross emblem; and (g) Pillage.”

77

Plaintiffs allege that an estimated 15,000 civilians, or 10% of Bougain-ville’s population, were killed during the war.

78

Although the war ended in 1999, plaintiffs assert that its aftermath has been devastating. They contend that the land is ravaged, that thousands of Bougainvilleans have died, and that many others fled the island.

79

Of the Bougainvilleans that remain, plaintiffs assert that several suffer health problems,

80

and that an estimated 67,000 live in “care centers” or refugee camps.

81

E. Plaintiffs’ Lawsuit

On November 2, 2000, Alexis Holyweek Sarei, a current California resident who lived in Bougainville between 1973 and 1987, and twenty-one individuals who continue to reside in Bougainville or elsewhere in PNG, filed this putative class action against Rio Tinto pic and Rio Tinto Limited. Shortly thereafter, plaintiffs filed a first amended complaint asserting claims under the Alien Tort Claims Act, 28 U.S.C. § 1350 . Specifically, their complaint pleads claims for crimes against humanity; war crimes/murder; violation of the rights to life, health, and security of the person; racial discrimination; cruel, inhuman, and degrading treatment; violation of international environmental rights; and a consistent pattern of gross violations of human rights.

82

Additionally, the complaint alleges claims for negligence, public nuisance, private nuisance, strict liability, equitable relief, and medical monitoring.

83

*1128

Plaintiffs contend defendants’ mining operations have destroyed Bougainville’s environment and the health of its residents and that defendants are liable as a consequence. They also assert that, because the mine was a joint venture between Rio Tinto and the PNG government, and because Rio Tinto’s threats led PNG to use military force against the Bougainvilleans, defendants are responsible for human rights violations and war crimes committed during the revolution.

The complaint contains specific allegations regarding each of the named class representatives. The following are examples of the conduct in which Rio Tinto allegedly engaged, and the injuries it allegedly caused:

• Alexis Holyweek Sarei resided in Bou-gainville from 1973 to 1980, and from 1985 to 1987. During that time, he was allegedly exposed to toxic chemicals and tailings at the mine and in the rivers, which caused him to develop pneumonectomy. In addition, Sar-ei was purportedly placed under arrest, had a gun put to his forehead, was warned that his head would be blown open, and was ordered to leave the island. These events took place in the presence of his wife and daughter. During the war, his adopted son was allegedly shot and killed. Sarei sues on behalf of himself, his son, and his blood relatives.

84

• Paul E. Nerau resided in Bougainville until 1989. During the conflict, Nerau allegedly received death threats, which forced him to flee Bougainville and relocate in Port Moresby, PNG. While in Bougainville, Nerau was purportedly exposed to toxic chemicals placed in the environment by Rio Tin-to. Nerau’s parents allegedly died as a result of the blockade, and five of his nephews were killed during the conflict between the PNGDF and the BRA. He brings this suit on behalf of himself, his parents, and his blood relatives.

85

• Gregory Kopa is a resident of Bou-gainville. He is the paramount chief of the Moroni village, which was located in the area that is now the Pangu-na Mine. Kopa states: “Despite our people’s resistance, land for the mine was forcefully taken from our people. My mother was at the forefront of the fight against bulldozers and other heavy machinery used to force our people off the land. Where our village was is now a big hole. ' We have lost our land, the environment is destroyed, fishing rivers [are] contaminated and destroyed, sacred grounds [have been] destroyed and normal village life [has been] disturbed and destroyed through relocation. Relocation was done against our wishes to places unsuitable for farming, etc. A number of people in my village have died of unknown diseases. During the blockade, many people including babies died of preventable diseases including malaria, diarrhea, etc.”

86

• John Osani is a resident of Bougain-ville. His sister, Agnes Tasoro Hop, suffered from post-operation complications and asthma, and needed regular medical attention. During the blockade, she was allegedly unable to obtain medical aid and died. Similarly, Osani’s daughter was injured in a fall, and rushed to a medical center. Because there was no doctor or medication available as a result of the blockade, she also died.

87

*1129

• Ben Koras is a resident of Bougain-ville. During the conflict, the PNGDF allegedly beat his father to death.

88

On January 26, 2001, defendants filed a motion to dismiss, asserting that the court lacks subject matter jurisdiction because plaintiffs fail to state a cognizable claim under the Alien Torts Claim Act. Defendants contend alternatively that the action should be dismissed on

forum non conve-niens

grounds, as either Papua New Guinea or Australia is a more appropriate forum. Finally, defendants assert that plaintiffs raise questions that are nonjusti-ciable under the act of state or political question doctrines, and that the court should abstain under the doctrine of international comity.

II. DISCUSSION

A. Motion To Dismiss For Lack Of Subject Matter Jurisdiction

1. Legal Standard Governing Motions To Dismiss Under Rule 12(b)(1)

89

Defendants first move to dismiss the action under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. Rule 12(b)(1) attacks can be either facial or factual. See

White v. Lee,

227 F.3d 1214 , 1242 (9th Cir.2000) (“Rule 12(b)(1) jurisdictional attacks can be either facial or factual”);

Thornhill Publishing Co. v. General Telephone & Electronics,

594 F.2d 730 , 733 (9th Cir. 1979) (“A motion to dismiss for lack of subject matter jurisdiction may either attack the allegations of the complaint or may be made as a ‘speaking motion’ attacking the existence of subject matter jurisdiction in fact...”). Plaintiff bears the burden of demonstrating that the court has subject matter jurisdiction to hear the action. See

Kokkonen v. Guardian Life Ins. Co.,

511 U.S. 375, 377 , 114 S.Ct. 1673 , 128 L.Ed.2d 391 (1994);

Stock West, Inc. v. Confederated Tribes,

873 F.2d 1221 , 1225 (9th Cir.1989).

There is an important difference between Rule 12(b)(1) motions attacking the complaint on its face and those that rely on extrinsic evidence. In ruling on the former, courts must accept the allegations of the complaint as true. See

Valdez v. United States,

837 F.Supp. 1065,1067 (E.D.Cal.1993), aff'd., 56 F.3d 1177 (9th Cir.1995). In deciding the latter, courts may weigh the evidence presented, and determine the facts in order to evaluate whether they have the power to hear the case. See

Roberts v. Corrothers,

812 F.2d 1173, 1177 (9th Cir.1987). The “court may not[, however,] resolve genuinely disputed facts where ‘the question of jurisdiction is dependent on the resolution of factual issues going to the merits.’ ”

Id.

(quoting

Augustine v. United States,

704 F.2d 1074, 1077 (9th Cir.1983)). See also

Rosales v. United States,

824 F.2d 799, 803 (9th Cir.1987) (“A district court may hear evidence and make findings of fact necessary to rale on the subject matter jurisdiction question prior to trial, if the jurisdictional facts are not intertwined with the merits”).

Where jurisdiction is intertwined with merits, “the district court [must] assume[ ] the truth of the allegations in a complaint

*1130

... unless controverted by undisputed facts in the record”

(Roberts, supra,

812 F.2d at 1177 ), or treat the motion as a motion for summary judgment

(Careau Group v. United Farm Workers,

940 F.2d 1291, 1293 (9th Cir.1991) (“where jurisdiction is so intertwined with the merits that its resolution depends on the resolution of the merits, ‘the trial court should employ the standard applicable to a motion for summary judgment’ ”)). See also

Islands, Inc. v. United States Bureau of Reclamation,

64 F.Supp.2d 966, 968 (E.D.Cal.1999) (“A court is required to convert a Rule 12(b)(1) motion to dismiss into a Rule 12(b)(6) motion or Rule 56 summary judgment motion when resolution of the jurisdictional question is intertwined with the merits of the case”), vacated on other grounds, 2001 WL 503478 (9th Cir. May 11, 2001);

Laurence v. United States,

No. C-93-0381-DLJ, 1993 WL 266657 , * 2 (N.D.Cal. July 8,1993) (same).

In the context of actions arising under the Alien Tort Claims Act, the jurisdictional issue is almost always intertwined with the merits of plaintiffs’ claims. As the Second Circuit stated in

Filartiga v. Pena-Irala,

630 F.2d 876 (2d Cir.1980), because the statute requires, as a jurisdictional prerequisite, that plaintiffs allege a violation of the law of nations, “[cjourts have ... engaged in a more searching preliminary review of the merits than is required, for example, under the more flexible ‘arising under’ formulation.”

Id.

at 887 . See also

Bigio v. Coca-Cola Co.,

239 F.3d 440, 447 (2d Cir.2000) (requiring that a plaintiff proceeding under the Alien Tort Claims Act plead a violation of the law of nations as a jurisdictional prerequisite, and noting that

Filartiga

distinguished the Act, “with its jurisdictional pleading requirement, from general federal question jurisdiction, which is ‘not defeated by the possibility that the aver-ments in the complaint may fail to state a cause of action’”);

Kadic v. Karadzic,

70 F.3d 232, 238 (2d Cir.1995) (“Because the Alien Tort Act requires that plaintiffs plead a ‘violation of the law of nations’ at the jurisdictional threshold, this statute requires a more searching review of the merits to establish jurisdiction than is required under the more flexible ‘arising under’ formula of section 1331 [federal question jurisdiction],’ ” quoting

Filartiga, supra),

cert. denied, 518 U.S. 1005 , 116 S.Ct. 2524 , 135 L.Ed.2d 1048 (1996),;

Amlon Metals, Inc. v. FMC Corp.,

775 F.Supp. 668, 671 (S.D.N.Y.1991) (“When considering Alien Tort Statute claims on a 12(b)(1) motion, courts typically engage ‘in a more searching preliminary review of the merits than is required, for example!,] under the more flexible arising under formulation,’ ” quoting

Filartiga, supra,).

Accordingly, for purposes of assessing defendants’ jurisdictional attack, the court will assume the truth of the allegations set forth in plaintiffs’ first amended complaint.

2. Whether 28 U.S.C. § 1350 Confers Jurisdiction

The Alien Tort Claims Act (“ATCA”) 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 .

90

Invoking this statute, plaintiffs plead that defendants are liable for crimes against humanity, war crimes/murder, violation of the rights to life, health, and security of the person, racial discrimination, cruel, inhuman, and degrading treatment, violation of international environmental rights, and a consistent pattern of gross violations of human rights.

The Ninth Circuit has stated that the ATCA both confers federal subject

*1131

matter jurisdiction and creates an independent cause of action for violations of treaties or the law of nations. See

In

re

Estate of Ferdinand Marcos, Human Rights Litigation (“Hilao II”),

25 F.3d 1467 , 1475-76 (9th Cir.1994). See also

Kadic, supra,

70 F.3d at 238 ;

Filartiga, supra,

630 F.2d at 887 ;

Alomang v. Freeport-McMoran, Inc.,

Civ. A. No. 96-2139, 1996 WL 601431 , *4 (E.D.La. Oct.17, 1996) (“Freeport correctly points out that the Alien Tort Statute provides an independent basis of federal question jurisdiction to redress human rights violations”).

Thus, for jurisdiction to lie under § 1350, plaintiffs must allege facts sufficient to establish that (1) they are aliens (2) suing for a tort (3) that was committed in violation of the law of nations or a treaty of the United States. See

Kadic, supra,

70 F.3d at 238 (“... it is not a sufficient basis for jurisdiction to plead merely a colorable violation of the law of nations. There is no federal subject-matter jurisdiction under the Alien Tort Act unless the complaint adequately pleads a violation of the law of nations (or treaty of the United States)”);

Beanal v. Freeport-McMoran, Inc.,

197 F.3d 161, 164-65 (5th Cir.1999) (“Section 1350 confers subject matter jurisdiction when the following conditions are met; (1) an alien sues, (2) for a tort, (3) that was committed in violation of the ‘law of nations’ or a treaty of the United States.... Thus, the issue before us is whether Beanal states claims upon which relief can be granted for violations under the ‘law of nations,’ i.e., international law”);

Alvarez-Machain v. United States,

107 F.3d 696, 703 (9th Cir.1996) (“we have previously held that the ATCA has a substantive as well as a jurisdictional component”);

National Coalition Gov’t of the Union of Burma v. Unocal, Inc.

(“

Unocal II”),

176 F.R.D. 329, 344 (C.D.Cal.1997).

In the present ease, there is no dispute that the first two elements necessary to establish jurisdiction under § 1350 are present. The only dispute is whether, accepting the allegations of the complaint as true, plaintiffs have adequately pleaded a violation of a treaty of the United States or the law of nations.

91

It is on this basis that defendants urge the court to dismiss the action for lack of subject matter jurisdiction, failure to state a claim upon which relief can be granted, or both.

92

Plaintiffs concede that Rio Tinto has not violated a treaty of the United States. They contend, however, that they have sufficiently alleged violations of the law of nations.

93

To ascertain the content of the law of nations, courts consult the works of jurists on public law, consider the general practice of nations, and refer to court decisions that discuss and enforce international law. See

Beanal, supra,

197 F.3d at 165 ;

Kadic, supra,

70 F.3d at 238 ;

Siderman de Blake v. Republic of Argentina,

965 F.2d 699, 714 (9th Cir.1992).

Looking to such sources, the Ninth Circuit has held 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.’ ”

Hilao II, supra,

25 F.3d at 1475 (quoting

Filartiga, supra,

630 F.2d at 885 ). See also

Filartiga, supra,

630 F.2d at 888 (“It is only where the nations of the world have demonstrated that the wrong is of mutual and not merely several, concern, by means of express in

*1132

ternational accords, that a wrong generally recognized becomes an international law violation within the meaning of the [ATCA]”);

Beanal, supra,

197 F.3d at 167 (same);

Xuncax v. Gramajo,

886 F.Supp. 162, 180 (D.Mass.1995) (same);

Amlon Metals, supra,

775 F.Supp. at 671 (same). Cf.

Guinto v. Marcos,

654 F.Supp. 276, 280 (S.D.Cal.1986) (“violation of the First Amendment right of free speech does not rise to the level of such universally recognized rights and so does not constitute a ‘law of nations’ ”).

In evaluating plaintiffs’ ATCA claims, therefore, the court must consider: (1) whether they identify a specific, universal, and obligatory norm of international law; (2) whether that norm is recognized by the United States; and (3) whether they adequately allege its violation. See

Unocal II, supra,

176 F.R.D. at 345 .

Plaintiffs allege that Rio Tinto’s actions in Bougainville — commencing with its construction of the mine in the 1960s and continuing through the end of the civil war in 1999 — violated norms of international law that are established in various international declarations and resolutions. The allegations of are four general types— plaintiffs assert that defendants are guilty of war crimes; that they have committed crimes against humanity; that they have engaged in racial discrimination; and that they have caused environmental harm. Before examining whether each type of claim adequately alleges a violation of the law of nations, it is appropriate to consider defendants’ argument that plaintiffs have failed to exhaust local remedies, and that exhaustion is a necessary prerequisite to filing suit under the ACTA.

a. Exhaustion Of Local Remedies

Defendants’ threshold argument is that the action should be dismissed because plaintiffs have failed to exhaust remedies available locally in PNG.

94

They assert that “remedies for violation of human rights obligations 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 shown that it would be futile to do so.”

95

Defendants contend that PNG law provides adequate remedies and that plaintiffs cannot demonstrate that the exhaustion of such remedies would be futile.

i. Exhaustion Requirement Under The ATCA/TVPA

In support of their assertion that exhaustion is required, defendants cite the Torture Victims Protection Act (“TVPA”) enacted by Congress in 1992.

96

The TVPA

*1133

(reprinted in the historical and statutory notes to 28 U.S.C. § 1350 ) provides in pertinent part:

“(a) Liability. — An individual who, under actual or apparent authority, or col- or of law, of any foreign nation—

(1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual or;

(2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual’s legal representative, or to any person who may be a claimant in an action for wrongful death.

(b) Exhaustion of remedies. — 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.”

97

Defendants assert that by including subdivision (b) in the TVPA, “Congress has explicitly recognized that exhaustion of national remedies is an element of a cause of action under international law.”

98

Plaintiffs’ complaint, however, states claims under the ATCA rather than the TVPA.

99

On its face, the ATCA does not require exhaustion of local remedies; it simply provides that “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 . As plaintiffs note, no court has imposed an exhaustion requirement in a case brought exclusively under the ATCA.

100

Rather, all alien tort actions in which exhaustion of remedies has been addressed have involved claims pleaded under the TVPA. See, e.g.,

Hilao v. Estate of Ferdinand Marcos {“Hilao III”),

103 F.3d 767, 778, n. 5 (9th Cir.1996);

Xuncax, supra,

886 F.Supp. at 178 ;

Alomdng, supra,

1996 WL 601431 at * 3;

Cabiri v. Assasie-Gyimah,

921 F.Supp. 1189, 1197, n. 6 (S.D.N.Y. 1996).

The court is not persuaded that Congress’ decision to include an exhaustion of remedies provision in the TVPA indicates that a parallel requirement must be read into the ATCA. Indeed, the Second Circuit rejected an analogous argument in

Kadic .

There, defendant asserted that Congress intended that the TVPA’s color of law provision apply to claims brought under the ATCA.

Kadic, supra,

70 F.3d at 241 . The court disagreed, stating:

“Congress enacted the Torture Victim Act to codify the cause of action recog

*1134

nized by this Circuit in

Filartiga ,

and to further extend that cause of action to plaintiffs who are U.S. citizens. At the same time, Congress indicated that the Alien Tort Act ‘has other important uses and should not be replaced,’ because ‘[cjlaims based on torture and summary executions do not exhaust the list of actions that may appropriately be cov-

ered [by the Alien Tort Act]. That statute should remain intact to permit suits based on other norms that already exist or may ripen in the future into rules of customary international law.’ ”

Id.

(quoting H.R.Rep. No. 367,

supra,

at 4, U.S.Code Cong. & Admin.News 1992, pp. 84, 87).

101

*1135

Accordingly, it held that “[t]he scope of the Alien Tort Act remain[ed] undiminished by enactment of the Torture Victim Act,” and that the color of law requirement did not apply to ATCA lawsuits outside the scope of the TVPA. See

id.

Adopting a similar rationale, the court concludes that the inclusion of an exhaustion of remedies provision in the TVPA was not intended to impose a similar requirement upon ATCA claims that fall outside the scope of the TVPA statute.

As noted earlier, the TVPA was enacted at least partially in response to Judge Bork’s concurrence in

Tel-Oren, supra,

726 F.2d at 798-823. In his opinion, Judge Bork took issue with the Second Circuit’s assumption in

Filartiga

that the ATCA both granted jurisdiction and created a cause of action.

Id.

at 801. He stated: “... [I]t is essential that there be an explicit grant of a cause of action before a private plaintiff be allowed to enforce principles of international law in a federal tribunal.”

Id.

The TVPA confirmed that individuals subjected to torture and/or extrajudicial killing by state actors had a cognizable claim in federal court. See

Kadic, supra,

70 F.3d at 241 (“Congress enacted the Torture Victim Act to codify the cause of action recognized by this Circuit in

Filartiga ,

and to further extend that cause of action to plaintiffs who are U.S. citizens”). It was to this specific cause of action that Congress attached an exhaustion of local remedies requirement.

Moreover, nothing in the TVPA’s legislative history supports defendants’ argument that Congress was motivated to include an exhaustion requirement because it believed that exhaustion was a necessary element of a torture/extrajudicial killing claim under international law.

102

Rather, it appears that Congress mandated exhaustion as a means of balancing its desire to provide meaningful remedies to victims of such acts against its wish to avoid overburdening the nation’s courts.

103

While at least one speaker at legislative hearings on

*1136

the bill referenced similar exhaustion requirements in both international and domestic law,

104

at no point did anyone testify that an exhaustion provision should be included in the TVPA because it was a necessary element of such a claim under international law. Indeed, the statements of this one speaker — who was not even a member of Congress — are not reliable indicators of Congressional intent, and cannot be given weight in the face of committee reports indicating a contrary purpose. Compare

Garcia v. United States,

469 U.S. 70, 76 , 105 S.Ct. 479 , 83 L.Ed.2d 472 (1984) (“In surveying legislative history we have repeatedly stated that the authoritative source for finding the Legislature’s intent lies in the Committee Reports on the bill, which ‘represent] the considered and collective understanding of those Congressmen involved in drafting and studying the proposed legislation’ ”);

United States v. Nelson,

277 F.3d 164, 186 (2d Cir.2002) (“In making this inquiry, we rely principally on the reports of the legislative Committees involved in drafting the statute and in steering it through Congress. The Supreme Court has said that these Reports, ‘which represent the considered and collective understanding of those Congressmen involved in drafting and studying proposed legislation,’ constitute ‘the authoritative source for finding the Legislature’s intent.’ ... We therefore ‘eschew [ ] reliance on the passing comments of one Member, and casual statements from the floor debates,’ ... and focus on the Reports instead”);

Mills v. United States,

713 F.2d 1249, 1252 (7th Cir.1983) (committee reports are among the most reliable indicators of congressional intent), cert. denied, 464 U.S. 1069 , 104 S.Ct. 974 , 79 L.Ed.2d 212 (1984);

American Jewish Congress v. Kreps,

574 F.2d 624, 629, n. 36 (D.C.Cir.1978) (committee reports carry greater weight than other types of legislative history) with

Kelly v. Robinson,

479 U.S. 36, 51, n. 13 , 107 S.Ct. 353 , 93 L.Ed.2d 216 (1986) (“We acknowledge that a few comments in the hearings and the Bankruptcy Laws Commission Report may suggest that the language bears the interpretation adopted by

*1137

the Second Circuit. But none of those statements was made by a Member of Congress, nor were they included in the official Senate and House Reports. We decline to accord any significance .to these statements”);

Turner v. Prod,

707 F.2d 1109, 1119 (9th Cir.1983) (“... testimony of witnesses before congressional committees prior to passage of legislation generally constitutes only ‘weak evidence’ of legislative intent”), rev’d. on other grounds sub nom.

Heckler v. Turner,

470 U.S. 184 , 105 S.Ct. 1138 , 84 L.Ed.2d 138 (1985);

Nish v. Cohen,

95 F.Supp.2d 497, 500 (E.D.Va.2000) (“Generally, statements made at committee hearings by non-members ■ of Congress are accorded little to no weight in a legislative history analysis,” citing Norman J. Singer, Sutherland Statutory Construction, § 48.10, at p. 343 (5th ed.1992)).

The Ninth Circuit, like the Second Circuit, has explicitly recognized that the ATCA not only confers jurisdiction on the federal courts, but creates a cause of action based on international law. See

Alvarez-Machain, supra,

107 F.3d at 703 (“First, defendants argue that the ATCA confers jurisdiction on federal courts to hear international law claims, but does not create a substantive, federal right like the TVPA. Defendants err in their description of the ATCA; we have previously held that the ATCA has a substantive as well as a jurisdictional component”);

Hilao II, supra,

25 F.3d at 1473 (“In

[In re Estate of Ferdinand E. Marcos Human Rights Litigation] Estate I,

7978 F.2d 493 (9th Cir.1992)] we agreed that a jurisdictional statute could ‘not alone confer jurisdiction on the federal courts, and that the rights of the parties must stand or fall on federal substantive law to pass constitutional muster.’ ... However, we disagreed that there was no federal substantive law governing the dispute!,] ... [and] rejected the Estate’s argument that international law does not provide a basis for federal court jurisdiction under § 1350”);

id.

at 1475 (“We thus join the Second Circuit in concluding that the Alien Tort Act, 28 U.S.C. § 1350 , 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’ ”). It is thus appropriate for this court to adopt the Second Circuit’s view that the ATCA continues to provide a cause of action for violations of international law

other than

torture and extrajudicial killing. See

Kadic, supra,

70 F.3d at 241 (“Claims based on torture and summary executions do not exhaust the list of actions that may appropriately be covered [by the Alien Tort Act]. That statute should remain intact to permit suits based on other norms that already exist or may ripen in the future into rules of customary international law.... The scope of the Alien Tort Act remains undiminished by enactment of the Torture Victim Act”).

As respects these types of claims, there is no explicit statutory requirement that plaintiffs exhaust local remedies before filing suit in federal court. Nor, as noted, is there any indication in the legislative history that Congress intended to impose any such requirement. Congress could, had it wished to do so, have amended the ATCA to impose such a requirement at the time it enacted the TVPA. It did not do so. As a matter of statutory construction, therefore, the court declines to find that ATCA plaintiffs must exhaust national remedies before filing suit in the United States.

105

*1138

Cf.

Jama v. U.S. Immigration and Naturalization Service,

22 F.Supp.2d 353, 364 (D.N.J.1998) (rejecting defendants’ contention that plaintiffs could not state ATCA claims for violation of international law because the United States Constitution and statutes afforded adequate relief, the court found “there [was] no absolute preclusion of international law claims” simply because “domestic remedies [were available] for the same alleged harm.... There is nothing in the ATCA which limits its application to situations where

there is no

relief available under domestic law”).

106

ii. Exhaustion Requirement Under International Law

Defendants argue alternatively that exhaustion of local remedies is a well-established principle of international law, and thus that, in order to plead a “violation of the law of nations,” an ATCA plaintiff must plead exhaustion of local remedies. It would appear that exhaustion of local remedies is generally a recognized feature of international law. See

Banco Nacional de Cuba v. Sabbatino,

376 U.S. 398, 422-23 , 84 S.Ct. 923 , 11 L.Ed.2d 804 (1964)

(“The traditional view of international law is that it establishes substantive principles for determining whether one country has wronged another. Because of its peculiar nation-to-nation character the usual 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 champion his claim in diplomacy or before an international tribunal”); Restatement, § 703, cmt. d (“A state may pursue formal, bilateral remedies under Subsections (1) and (2) 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. That requirement is met if it is shown that none is available or that it would be futile to pursue them. 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

*1139

against violators by United Nations bodies or international financial institutions”).

107

Nonetheless, the court here must apply the plain language of the ATCA, which does not require such a measure. See

Bates v. United States,

522 U.S. 23, 30 , 118 S.Ct. 285 , 139 L.Ed.2d 215 (1997) (“[W]e ordinarily resist reading words or elements into a statute that do not appear on its face”);

Ralph Oldsmobile Inc. v. General Motors Corp.,

No. 99-Civ. 4567(AGS), 2000 WL 1459767 , *5 (S.D.N.Y. Sept. 29, 2000) (“It is well established that a court should usually not read into a statute requirements that are not called for by the statutory language”).

Stated otherwise, the ATCA does not adopt wholesale all principles of international law. Rather, it creates a domestic cause of action for violations of international law. See

Hilao II, supra,

25 F.3d at 1475 (“ ‘... section 1350 does not require that the action ‘arise under’ the law of nations, but only mandates a ‘violation of the law of nations’ in order to create a cause of action.’ ... It is unnecessary that international law provide a

specific

right to sue. International law ‘does not require any particular reaction to violations of law.... Whether and how the United States wished to react to such violations are domestic questions,’ ” quoting

Tel-Oren, supra,

726 F.2d at 779 (Edwards, J., concurring) (emphasis original)). Because it is a creature of domestic law, the ATCA need not impose the same conditions on a plaintiffs right to sue as international law or the domestic law of other nations. Accordingly, the court finds that plaintiffs are not required to demonstrate that they have exhausted local remedies, or that doing so would be futile, in order to state a claim under the ATCA.

b. Pleading Of Substantive Claims

i. War Crimes

Count II of plaintiffs’ complaint pleads an ATCA claim for war crimes and murder.

108

It alleges that, acting as Rio Tin-to’s agents, the PNG government and the PNG Defense Force (“PNGDF”) violated the law of war, which constitutes a recognized norm of international law. Specifically, it asserts, that by implementing and maintaining a medical blockade, defendants tortured and murdered innocent civilians.

109

It also alleges that the PNGDF bombed civilian targets, engaged in wanton killing and acts of cruelty, burned homes and villages, raped Bougainvillean women, and pillaged the island.

110

Courts have held that a violation of the law of war may serve as a basis for a claim under the ATCA. See

Kadic, supra,

70

*1140

F.3d at 242-43 (“Plaintiffs also contend that the acts of murder, rape, torture, and arbitrary detention of civilians, committed in the course of hostilities, violate the law of war. Atrocities of the types alleged here have long been recognized in international law as violations of the law of war.... The District Court has jurisdiction pursuant to the Alien Tort Act over appellants’ claims of war crimes and other violations of international humanitarian law”);

Iwanowa v. Ford Motor Co.,

67 F.Supp.2d 424, 444-45 (D.N.J.1999) (concluding that plaintiff had stated a claim under the ATCA since “deportation of civilian populations to slave labor is a war crime”);

Jane Doe I v. Islamic Salvation Front (FIS),

993 F.Supp. 3, 8 (D.D.C.1998) (finding jurisdiction under the ATCA for alleged war crimes because the Geneva Conventions, which apply to “armed conflict[s] not of an international character,” require that civilians be “treated humanely” and prohibit “murder of all kinds, mutilation, cruel treatment and torture, kidnapping and summary executions”). See also

Corporate Liability for Violations of International Human Rights Law,

114 Harv. L. Rev.2025, 2037 (2001) (“[I]f a corporation commits piracy, slave trading, genocide, or war crimes, then it may be held liable under the ATCA even absent state action”); Restatement, § 404 (“A state has jurisdiction to define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern, such as ... war crimes, ... even where [no other basis of jurisdiction] is present”).

Defendants attack plaintiffs’ war crimes allegations on two bases. First, they assert that plaintiffs have not alleged a violation of the law of war.

111

Second, they contend that plaintiffs do not adequately plead that Rio Tinto is a state actor.

112

(a) Plaintiffs Have Adequately Alleged A Violation Of The Law Of War

Defendants contend that plaintiffs’ allegations regarding the effects of the medical blockade do not state a claim for violation of the law of war because “blockades, a form of non-violent economic pressure, do not run afoul of established international norms.”

113

As support for this proposition, defendants proffer the declaration of their expert, Professor Barry Carter. Carter states: “The allegation that a sovereign state’s blockade of an island within its recognized territory is illegal runs contrary to customary international law, which recognizes and respects the political independence and territorial sovereignty of a state[,] including the inherent right to police its own territory.”

114

Carter cites no authority supporting his opinion.

In fact, his (and defendants’) position is contrary to the Geneva Conventions, which “represent the international consensus regarding minimum standards of conduct during wartime.” M.A.

A26851062 v. U.S. INS,

858 F.2d 210, 219 (4th Cir.1988). Following World War II, the Geneva Conventions were ratified by more than 180 nations, including the United States. See

Kadic, supra,

70 F.3d at 243 . They apply to “armed confliet[s] not of an international character,” and require that each party to the conflict treat persons taking no active part in the hostilities humanely. See

Kadic, supra,

70 F.3d at 243 ;

M.A., supra,

858 F.2d at 219 ;

Islamic Salvation Front, supra,

993 F.Supp. at 8 . See also

Marzook v. Christopher,

924 F.Supp. 565, 577 (S.D.N.Y.1996) (“The indiscriminate bomb

*1141

ing of buses laden with civilians and other such types of attacks targeted at civilians do not advance any political motive other than as terrorist acts. Such attacks have been universally condemned, even when they occur during a declared war, and clearly are less tolerable when committed by terrorists,” citing the Geneva Convention).

The Conventions prohibit the following acts: “(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; [and] (d) the passing of sentences and carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”

Kadic, supra,

70 F.3d at 243 ;

American Baptist Churches in the U.S.A. v. Meese,

712 F.Supp. 756, 769 (N.D.Cal. 1989). Additionally, Article 3 of Geneva Convention IV provides that “[t]he wounded and sick shall be collected and cared for.” Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949,

entered into force

Oct. 21, 1950,

for the United States

Feb. 2, 1956, 6 U.S.T. 3516, T.I.A.S. 3365, 75 U.N.T.S. 287, art. 3(2).

Despite defendants’ arguments to the contrary,

115

the court concludes that plaintiffs’ allegations regarding the decade-long civil war in Bougainville adequately plead the existence of an “armed conflict not of an international character.” Because they were engaged in such a conflict, the parties to the struggle- — the PNGDF and the BRA — had an obligation to treat civilians humanely. Alleging that defendants intentionally denied civilians medical treatment and supplies through the imposition of a medical blockade adequately pleads “cruel treatment” and an “outrage[] upon personal dignity” within the meaning of the

*1142

treaty. It also adequately pleads a violation of the requirement that “[t]he wounded and sick ... be collected and cared for.”

116

In addition to their allegations regarding the medical blockade, plaintiffs also allege that PNG troops bombed civilian targets, engaged in wanton killing and acts of cruelty, burned houses and villages, raped women, and pillaged.

117

Defendants do not dispute that such acts are prohibited by the Geneva Conventions. Because the Conventions codify the law of war (see

Kadic, supra,

70 F.3d at 243 ), and because the complaint sufficiently alleges a violation of the Conventions, plaintiffs have adequately pled war crimes under the ATCA.

(b) Plaintiffs Have Adequately Alleged Rio Tinto’s Liability For War Crimes

Defendants next contend that plaintiffs have not adequately alleged that Rio Tinto proximately caused the war crimes purportedly committed by the PNGDF.

118

They assert that, in order to hold a private defendant liable for a state’s violation of international law, a plaintiff must plead and prove that the private party “controlled” the state’s conduct. Defendants argue that plaintiffs have failed to allege such control.

119

Plaintiffs do not dispute that their war crimes allegations involve actions taken by the PNGDF rather than Rio Tinto. They maintain, however, that defendants may be held vicariously liable for international law violations under the ATCA “if [they] take[] steps to aid and encourage another’s commission of such violations, with knowledge that the violations will occur.”

120

Plaintiffs rely primarily on

Hilao III

and the

Unocal

cases.

In

Hilao III,

plaintiffs sued the Estate of Ferdinand Marcos under the TVPA. They alleged that Philippine military and paramilitary forces under Marcos’ command had tortured, summarily executed, and caused the disappearance of plaintiffs and/or their family members during Marcos’ nearly 14-year rule. See

Hilao III, supra,

103 F.3d at 771 . The district court instructed the jury,

inter alia,

that the Estate was liable if Marcos “directed, ordered, conspired with, or aided” the military, or if he “knew of such conduct.:. and failed to use his power to prevent it.”

Id.

at 776 . On appeal, the Estate argued that the court should have instructed that it could be held liable only for Marcos’ conduct, and not for acts within his knowledge that he failed to prevent. See

id.

at 778-79 .

Rejecting this argument, the Ninth Circuit noted that the legislative history of the TVPA endorsed the concept of “command responsibility,” long recognized in the law of war, and beginning to gain acceptance in the context of liability for peacetime acts of torture.

Id.

at 777 , 778-79 (quoting S.Rep. No. 249, 102nd Cong., 1st Sess., at 9 (1991) (“ ‘[A] higher official need not have personally performed or ordered the abuses in order to be held liable. [Responsibility for torture, summary execution, or disappearances extends beyond the person who actually committed those acts — anyone with higher authority who authorized, tolerated or knowingly ignored those acts is liable for them’”)). Since Marcos was a “higher official,” the

*1143

court concluded that he could be held liable for knowing about acts of torture and execution, and failing to take steps to prevent them.

Id.

The court also addressed the Estate’s challenge to an additional instruction, which stated that the Estate could be held liable if plaintiffs’ injuries were “caused by-reason of a person being taken into custody by an order of Ferdinand Marcos or under his authority.”

Id.

at 779 . The Estate argued that the instruction erroneously allowed the jury to hold it liable for injuries suffered by a plaintiff taken into custody on Marcos’ orders and later injured due to “intervening causes.”

Id.

Noting that jury instructions must be considered as a whole, the court found no error. It stated:

“The challenged instruction came directly after the district court’s main instruction on liability, which required the jury to find either that Marcos had ‘directed, ordered, conspired with, or aided’ in torture, summary execution, and disappearance, or that he had knowledge of that conduct and failed to use his power to prevent it. Thus, it is clear that the jury was required to find not merely that the plaintiffs were taken into custody under Marcos’ authority but that once in custody the plaintiffs were tortured, executed, or disappeared on Marcos’ orders or with his knowledge. The district court did not abuse its discretion in giving the challenged instruction.”

Id.

As this excerpt makes clear, the Ninth Circuit upheld the instructions because it concluded that, in enacting the TVPA, Congress intended to extend the concept of “command responsibility” to peacetime acts of torture and extrajudicial killing. The court did not focus on, or discuss, the instruction’s use of the phrase “directed, ordered, conspired with or aided,” most probably because the Estate did not challenge it on appeal. See

id.

at 776 .

As plaintiffs cannot invoke the concept of “command responsibility” to demonstrate that Rio Tinto is liable for PNG’s alleged violations of international law, the court finds

Hilao III

inapposite in determining what facts must be alleged to state a war crimes claim. The

Unocal

cases, by contrast, are directly relevant.

Plaintiffs contend the decisions stand for the proposition that a private entity may be held vicariously liable under the ATCA if it participates or cooperates in, approves of, or accepts the economic benefits of a state’s international law violations.

121

In

Unocal,

plaintiffs sued Unocal Corporation under the ATCA for injuries suffered as a consequence of international human rights violations committed by the government of Burma in connection with the Yadana Natural Gas Project. See

Doe v. Unocal Corp. (Unocal V),

110 F.Supp.2d 1294 (C.D.Cal.2000);

Unocal II, supra,

176 F.R.D. 329 ;

Doe I v. Unocal Corp. (“Unocal I

”), 963 F.Supp. 880 (C.D.Cal.1997). Plaintiffs argued that Unocal was liable for the violations because it had entered into a joint venture or implied partnership with the Burmese government to exploit the natural gas resources in the Yadana field.

Unocal II, supra,

176 F.R.D. at 335-36 . They alleged that Unocal participated in the Project by paying its share of Project expenses; shipping equipment to the region; assigning personnel to work on the Project; providing technology and expertise for gas exploration and transportation; and monitoring and advising its partners’ performance of their obligations.

Id.

at 336 . Plaintiffs contended Unocal had been placed on notice that the Burmese government would use forced labor and commit other human rights violations in implementing the Project, but took no action to ensure that this did not occur.

Id.

*1144

To evaluate whether the corporation could be held liable for the acts of the Burmese government, the

Unocal I/Unocal II

court followed the lead of the Second Circuit in

Kadic

and looked to case law addressing the “color of law” requirement imposed by 42 U.S.C. § 1983 .

122

See

Unocal II, supra,

176 F.R.D. at 345 ;

Unocal I, supra,

963 F.Supp. at 890 (citing

Kadic, supra,

70 F.3d at 245 ). In

Kadic ,

the Second Circuit described the standard as follows: “A private individual acts under color of law within the meaning of section 1983 when he acts together with state officials or with significant state aid.”

Kadic, supra,

70 F.3d at 245 . Citing this language, and the Ninth Circuit’s jurisprudence regarding state action under § 1983, the

Unocal I

court concluded that “private actors can be state actors if they are ‘willful participants] in joint action with the state or its agents.’ ” An agreement between a government and a private party, it found, can constitute joint action. See

Unocal I, supra,

963 F.Supp. at 890 -91 (quoting

Dennis v. Sparks,

449 U.S. 24, 27 , 101 S.Ct. 183 , 66 L.Ed.2d 185 (1980)). Applying this standard, the court held that allegations that the Burmese government was Unocal’s agent, that the two were joint venturers working in concert, and that they conspired to commit international law violations were sufficient to plead state action.

Unocal I, supra,

963 F.Supp. at 890-91 (complaint adequately alleged that Unocal was “jointly engaged with the state officials in the challenged activity, namely forced labor and other human rights violations in furtherance of the pipeline project”). See also

Unocal II, supra,

176 F.R.D. at 345-47, 348 (using the “ ‘willful participant in joint action with the state or its agents’ ” standard of

Dennis

and

Collins v. Womancare,

878 F.2d 1145, 1154 (9th Cir.1989), the court held that allegations of a joint venture and/or partnership between Unocal and the Burmese government were sufficient to state an ATCA claim because they suggested that Unocal’s activities were inextricably intertwined with those of the Burmese government).

In

Unocal V,

the court addressed the adequacy of plaintiffs’ proof of state action on summary judgment. While acknowledging that state action can be shown if a private party is a “willful participant in joint action with the State”

(Unocal V, supra,

110 F.Supp.2d at 1305 ), the court noted that this standard contemplates a situation in which a private party has engaged in the challenged conduct while acting in concert with the government. By contrast, it stated, the plaintiffs in

Unocal

sought to hold the corporation liable for acts committed by the Burmese government. See

id.

at 1307 . See also

National Collegiate Athletic Ass’n. v. Tarkanian,

488 U.S. 179, 192 , 109 S.Ct. 454 , 102 L.Ed.2d 469 (1988) (“In the typical case raising a state-action issue, a private party has taken the decisive step that caused the harm to the plaintiff, and the question is whether the State was sufficiently involved to treat that decisive conduct as state ac

*1145

tion.... Thus, in the usual case we ask whether the State provided a mantle of authority that enhanced the power of the harm-causing individual actor.... This case uniquely mirrors the traditional state action case. Here the final act challenged by Tarkanian — his suspension — was committed by UNLV”).

Because the acts in question had been committed by a governmental entity, the

Unocal V

court applied both a “joint action” and “proximate cause” test. As respects “joint action,” it concluded that the fact that Unocal and the Burmese government shared an interest in ensuring the profitability of the Project was not sufficient to prove that Unocal was a state actor. Because there was no evidence that Unocal “participated in or influenced” the unlawful conduct, or that it conspired with the government of Burma, the court found no proof of “joint action.”

Id.

at 1306-07.

The court next analyzed the situation under a “proximate cause” test, which it defined as follows: “In order for a private individual to be liable for a section 1983 violation when the state actor commits the challenged conduct, the plaintiff must establish that the private individual was the proximate cause of the violation. In order to establish proximate cause, a plaintiff must prove that the private individúale ] exercised control over the government official’s decision to commit the section 1983 violation.”

Id.

at 1307. (citing

Brower v. Inyo County,

817 F.2d 540 , 547 (9th Cir.1987), rev’d. on other grounds, 489 U.S. 593 , 109 S.Ct. 1378 , 103 L.Ed.2d 628 (1989);

King v. Massarweh,

782 F.2d 825, 829 (9th Cir.1986);

Arnold v. International Bus. Machines Corp.,

637 F.2d 1350, 1356 (9th Cir.1981)).

123

Because plaintiffs presented no evidence that Unocal “controlled” the Burmese government’s decision to commit violations of international law, the court found that they had failed to satisfy the “state action” requirement of the ATCA.

Id.

*1146

Given the alternative approaches utilized by the court in

Unocal V,

it is appropriate to consider which test is properly utilized in assessing whether plaintiffs’ war crimes claim adequately pleads defendants’ liability for the alleged acts of PNG and the PNGDF. The Ninth Circuit’s decision in

Arnold ,

offers some guidance, as it contains a useful discussion of the relationship between the state action and proximate cause requirements of § 1983. In

Arnold ,

certain proprietary documents were stolen from IBM, which commenced an internal investigation. Company officials then met with representatives of the California Attorney General’s Office and Santa Clara District Attorney’s Office, and a criminal investigation was commenced that led ultimately to Arnold’s arrest.

Arnold, supra,

637 F.2d at 1352-53 .

Noting that, in the case before it, “the determination of proximate cause [was] different from the determination of state action”

(id.

at 1355), the court first discussed

Martinez v. California,

444 U.S. 277 , 100 S.Ct. 553 , 62 L.Ed.2d 481 (1980), in which the Supreme Court held that a paroled prisoner’s killing of a young girl could not be deemed state action because “the death was ‘too remote a consequence of the parole officers’ action [in releasing the prisoner] to hold them responsible under the federal civil rights law.” ’

Arnold, supra,

637 F.2d at 1356 (quoting

Martinez, supra,

444 U.S. at 285 , 100 S.Ct. 553 ). The Ninth Circuit observed:

“Although the Court saw no need to decide the proximate cause issue, it appears to have employed elements of proximate cause analysis in determining state action. This can occur when the defendants are state officers. If the actions of the state officers are not the proximate cause of the plaintiffs injuries, then there is no state action.... [¶] The similarity between proximate cause and state action often disappears when the defendants are private parties, rath- . er than state officials. In most cases involving private defendants, there is no proximate cause issue at all. Usually, it is clear that the defendants caused the plaintiffs injury. The issue is whether the particular conduct is purely private, and thus immune from section 1983 liability, or is state action.... The case before us presents a different problem. Here, Arnold’s injuries were the result of state action. State officials performed the acts of arresting, searching, and indicting about which Arnold complains. Some circuits have examined the liability of private parties involved in police arrests in terms of state action .... In this case, however, the question before us is whether there is any evidence that the private defendants, IBM and its employees, caused those acts to occur within the meaning of sections 1983 or 1985.”

Id.

at 1356.

More recently, the Ninth Circuit observed that “[r]egardless of the label, the inquiry is the same: There must be some nexus between the wrongful act and the private entity.”

Sutton v. Providence St. Joseph Medical Center,

192 F.3d 826 , 838 & n. 5 (9th Cir.1999) (citing

Tarkanian’s

statement that “[i]n the typical case raising a state-action issue, a private party has taken the decisive step that caused the harm to the plaintiff, and the question is whether the State was sufficiently involved to treat that decisive conduct as state action,” the court concluded that a private defendant that acts under compulsion of a state regulation does not engage in state action unless there is “some other nexus between the private entity and the government”).

Sutton

suggests that, however the test is denominated, the court must determine that the conduct of the state is “fairly attributable” to the private party before state action can be found. See

id.

(“... the mere fact that the government

*1147

compelled a result does not suggest that the government’s action is ‘fairly attributable’ to the private defendant ... without some other nexus”).

This is consistent with the Supreme Court’s analysis in

Tarkanian .

The University of Nevada at Las Vegas (“UNLV”) suspended Tarkanian as its basketball coach after the NCAA threatened to impose sanctions against the school if it did not. See

Tarkanian, supra,

488 U.S. at 186 , 109 S.Ct. 454 . Tar-kanian sued the NCAA under 42 U.S.C. § 1983 . Examining Tarkanian’s contention that the association was a state actor, the Court considered a number of possibilities — whether UNLV’s participation in NCAA rulemaking made those rules the product of state action; whether UNLV’s adoption of and compliance with the rules transformed the NCAA into a state actor; whether the NCAA’s investigation and enforcement activities were the result of a delegation of power by UNLV; whether UNLV’s promise to cooperate in enforcement proceedings was tantamount to a partnership between the entities; and whether the “power” that the NCAA exercised over the collegiate athletics was so great that UNLV had no alternative but to comply with its demands.

Id.

at 192-99 , 109 S.Ct. 454 . The Supreme Court found none of these suggestions persuasive. Noting that “[i]n [the] final analysis the question is whether ‘the conduct allegedly causing the deprivation of a federal right [can] be fairly attributable to the State,”’ it concluded that the NCAA’s conduct could not fairly be attributed to the State of Nevada, as UNLV had opposed the imposition of sanctions and Tar-kanian’s suspension throughout lengthy disciplinary proceedings.

Id.

at 199 , 109 S.Ct. 454 . See also

id.

at 196 , 109 S.Ct. 454 . Because the parties’ interests did not coincide, it held that there was no “joint action,” as that term had been used in

Burton v. Wilmington Parking Authority,

365 U.S. 715 , 81 S.Ct. 856 , 6 L.Ed.2d 45 (1961), and that there could be no proof of conspiracy, as there had been in

Dennis, supra,

449 U.S. at 28-29 , 101 S.Ct. 183 .

Tarkanian, supra,

488 U.S. at 196, 198, n. 17 , 109 S.Ct. 454 .

124

*1148

As can be seen, the Supreme Court invoked multiple formulations of the state action test in analyzing whether the NCAA could be deemed a state actor. Here, in similar vein, whether examined in terms of “joint action,” or the “control” necessary to support a finding of “proximate cause,” plaintiffs have adequately alleged that PNG’s actions are “fairly attributable” to Rio Tinto. Specifically they have alleged that PNG acted as Rio Tinto’s agent, that Rio Tinto “controlled” its actions, and that Rio Tinto was a “willful participant”/“conspirator” in them. The complaint asserts:

• “BCL chief Don Carruthers flew into Port Moresby. He warned there that, ‘Rio would ‘seriously reconsider’ future investment in PNG in light of what he described as the ‘acts of terrorism’ on Bougainville resulting from the ‘unrealistic expectations’ on the part of landowners.’ At the time Rio was investing heavily in PNG, in exploration, reinvestments in Panguna, the planned ‘Hidden Valley’ project and the enormous gold mine on Lihir Island. Given the economic importance to [PNG],

Rio 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.”

125

• “To induce PNG military action, Rio issued an ultimatum to the PNG government that the failure to displace plaintiffs and members of the Class and reopen the mine through military action would result in Rio quitting the mine entirely and abandoning all other investment in PNG.... Rio understood and intended that this ultimatum was likely to result in military action by PNG and intended such action to take place even if it meant the death and/or injury of residents.

Rio further understood that it had a great deal of the control over the situation. If Rio did not direct and/or encourage a military response, Rio understood that none would have been initiated. Rio also understood that it could have discouraged or insisted that no military response take place and that none would have been

taken.”

126

• “On information and belief, the Rio officials ... encouraged and suggested that all efforts be made to displace by any means plaintiffs and members of the class. Rio officials knew such means already in place were resulting in injury and death.”

127

• “With respect to the initiation and maintenance of the blockade, Rio

conspired

with the PNG government and ratified the blockade, informing PNG that its actions were enough to prevent Rio from withdrawing from the region.”

• “At meetings with Rio and PNG officials, Rio’s on-site employees encouraged continuation of the blockade. At one meeting in 1990 between PNG officials and two top Rio executives, one top Rio manager encouraged continuation of the blockade to ‘starve the bastards out, some more and they will come around.’ This comment was made after a discussion of the devas-

*1149

fating effects of the blockade. The Rio officials understood that given the economic importance of Rio’s operations,

their comments would be considered by PNG as an order to continue military action.”

128

• “Rio always understood that

its statements

to PNG officials concerning military action, due to the importance of Rio to the PNG economy,

loere taken as directives by the PNG government.”

129

• “Rio’s threats to withdraw from PNG if the fighting did not continue, and its agreement to stay as long as PNG kept waging the war and the medical blockade, shows that

Rio had a degree of control over PNG’s commission of tortuous acts,

and that

Rio’s actions ivere a proximate cause of plaintiffs and Class members’

injuries.”

130

•

“The PNG government and its soldiers acted as the agent of Rio and ivith Rio’s tacit or implicit direction, encouragement and

solicitation.”

131

Additionally, the complaint alleges that the mine was a joint venture between Rio Tinto and PNG,

132

that waging war against the BRA was necessary to reopen the mine,

133

and that Rio Tinto supplied helicopters and other vehicles for use by the PNGDF.

134

The court concludes that, if proved, these facts in combination are sufficient to permit a jury to find that the acts of PNG are “fairly attributable” to Rio Tinto, that it was “willful participant” in those acts, and/or that it exercised “control” over them. The allegations of the war crimes claim are thus sufficient to state a claim and confer jurisdiction under the ATCA.

ii. Crimes Against Humanity

135

In addition to asserting that the imposition and continuation of the medical blockade constituted a war crime, plaintiffs charge that it constituted a crime against humanity cognizable under the ATCA.

136

Specifically, they allege that the “medical blockade eonstitute[d] genocide because it foreseeably resulted in the killing of natives, caused serious bodily harm, was deliberately calculated to destroy plaintiffs and them way of life,”

137

and constituted an “act[ ] of official torture.”

138

They assert that “Rio [Tinto] ... acted jointly and willfully with PNG and the government of Australia to institute [the] blockade,” and that even “[w]hen it became apparent that death and injury was being inflicted, ...

*1150

Rio nonetheless encouraged PNG military action.”

139

It well-settled that a party who commits a crime against humanity violates international law and may be held liable under the ATCA. See

Kadic, supra,

70 F.3d at 236 (holding that subject-matter jurisdiction exists under the ATCA for genocide, war crimes, and crimes against humanity);

Quinn, supra,

783 F.2d at 799 (“Crimes against humanity, such as genocide, violate international law”);

Tel-Oren, supra,

726 F.2d at 791 (Edwards, J., concurring) (stating that certain war crimes, crimes against humanity, genocide, apartheid and, increasingly, torture are recognized international crimes);

United States v. Schiffer,

831 F.Supp. 1166, 1180 (E.D.Pa.1998) (“After World War II, the United States Army prosecuted war crimes in accordance with established principles of international law. Because of the atrocities that had occurred in the concentration camps, a new category, ‘crimes against humanity,’ was added to international law”).

140

Defendants do not dispute this.

What constitutes a “crime against humanity” is less clear, and the subject of disagreement between the parties. Plaintiffs’ expert, Steven Ratner, states that, generally, crimes against humanity “are a set of acts against human life, liberty, physical welfare, health, or dignity, undertaken as part of a widespread or systematic attack against a civilian population.”

141

See also

Handel v. Artukovic,

601 F.Supp. 1421, 1426 (C.D.Cal.1985) (“crimes against humanity include ‘murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population’”). Professor Ratner opines that crimes against humanity can occur in peacetime as well during times of war.

142

In his treatise, Ratner identifies the following as crimes against humanity: (1) murder and extermination; (2) enslavement and forced labor; (3) deportation; (4) imprisonment; (5) torture; (6) rape; (7) other inhumane or inhuman acts; (8) persecutions; (9) property crimes; and (10) disappearances. See Steven R. Ratner

&

Jason S. Abrams,

Accountability for Human Rights Atrocities in International Law, supra,

at 69-77.

It appears that crimes against humanity target a particular group of people for political, racial, or religious reasons. See

Quinn, supra,

783 F.2d at 799 (“While some of the same offenses that violate the laws and customs of war are also crimes against humanity, crimes of the latter sort most notably include ‘murder, extermination, enslavement, ... or persecutions on political, racial or religious grounds ... ’ of entire racial, ethnic, national or religious groups,” quoting

The Nürnberg (Nuremberg) Trial,

6 F.R.D. 69 , 130 (Int’l Military Tribunal 1946));

Ofosu v. McElroy,

933 F.Supp. 237, 245 (S.D.N.Y.1995) (stating that the definition of “crimes against humanity” includes “persecutions on political, racial or religious grounds”).

As noted earlier, plaintiffs allege that the medical blockade was a crime against humanity because it amounted to genocide.

143

Genocide is a recognized crime against humanity. The question, therefore, is whether the facts plaintiffs allege regarding the medical blockade fair

*1151

ly state a claim for genocide.

Kadic ,

which held that plaintiffs could state a claim under the ATCA for genocide

(Rad-ie, supra,

70 F.3d at 236 ), defined the term as “ ‘any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births with the group; (e) Forcibly transferring children of the group to another group.’ ”

Id.

at 241 (quoting the Convention on the Prevention and Punishment of the Crime of Genocide, which has been ratified by more than 120 nations, including the United States).

Plaintiffs allege that the “medical blockade constituted] genocide because it fore-seeably resulted in the killing of natives, caused serious bodily harm, [and] was deliberately calculated to destroy plaintiffs and their way of life ....”

144

As discussed

infra,

plaintiffs also allege that defendants’ actions were motivated by racial discrimination.

145

Construing the complaint in the light most favorable to plaintiffs as required on a motion to dismiss, the court concludes that plaintiffs have stated a claim for crimes against humanity under the ATCA.

146

iii. Racial Discrimination

Count IV purports to state an ATCA claim against Rio Tinto for racial discrimination. It alleges:

“Rio viewed the people of Bougainville as inferior due to their color and culture and, therefore, intentionally violated their rights. This is a policy and intent that Rio has manifested and directed toward indigenous people in many areas of the world where they have located mines. In this instance, this policy was, in part, the reason Rio destroyed villages, the environment, sacred sites and local culture, and is one of the reasons behind Rio’s support of the blockade.” “Discrimination was a motivating factor in Rio’s actions in Bougainville and around the world. _ In South Africa, Rio paid a black migrant labor force an average wage below the minimum set by the South African Institute of Race Relations. At another mine, mine laborers were housed in ‘appalling temporary camps’ in slave-like conditions. Furthermore, Rio has not hesitated to displace indigenous communities to implement various projects, forcing the relocation of villages and the extinction of culture. All of the above practices were instituted by Rio on Bougain-ville.”

147

Plaintiffs contend that, given PNG’s substantial financial interest in the Panguna

*1152

Mine, defendants acted under color of state authority in discriminating against the people of Bougainville.

148

While defendants argue that plaintiffs’ racial discrimination claim “has no support in the law of nations,”

149

their primary attack on the claim is that plaintiffs have failed adequately to allege state action.

150

This focus is not surprising, as it is well-settled that racial discrimination is a violation of the law of nations. Many courts, indeed, have held that practicing racial discrimination violates a

jus cogens

norm.

151

See

Kadic, supra,

70 F.3d at 240 (“ ‘A state violates international law if, as a matter of state policy, it practices, encourages, or condones ... systematic racial discrimination,’ ” quoting Restatement, § 702);

Siderman de Blake, supra,

965 F.2d at 717 (noting that the Restatement “identifies]

jus cogens

norms prohibiting genocide, slavery, murder or causing disappearance of individuals, prolonged arbitrary detention, and systematic racial discrimination”);

Beanal v. Freeport-McMoRan, Inc.,

969 F.Supp. 362, 371 (E.D.La.1997) (recognizing that systematic racial discrimination is “actionable as violative of the law of nations”), aff'd., 197 F.3d 161 (5th Cir.1999);

Hirsh, supra,

962 F.Supp. at 381 (“A foreign state violates

jus cogens

when it participates in such blatant violations of fundamental human rights as ‘genocide, slavery, murder, torture, prolonged arbitrary detention, and racial discrimination,’ ” quoting

Committee of U.S. Citizens in Nicaragua v. Reagan,

859 F.2d 929, 941 (D.C.Cir.1988));

Denegri v. Republic of Chile,

Civ. A. No. 86-3085, 1992 WL 91914 , *4 (D.D.C. Apr.6, 1992)

(“jus cogens

comprises the fundamental human rights law that prohibits genocide, slavery, murder, torture, prolonged arbitrary detention, and racial discrimination”);

Guinto, supra,

654 F.Supp. at 280 (recognizing systematic racial discrimination as a representative violation of international law).

152

Clearly, a

*1153

claim under the ATCA may be based on the violation of a

jus cogens

norm such as racial discrimination. See

Hilao II, supra,

25 F.3d at 1475;

Unocal I, supra,

963 F.Supp. at 890 .

Defendants are correct, however, that to state an ATCA claim for racial discrimination, plaintiffs must allege state action. See RestatemeNt, § 702 (providing that “[a]

state

violates international law if, as a matter of state policy, it practices, encourages, or condones ... systematic racial discrimination” (emphasis added)). See also

Kadic, supra,

70 F.3d at 240 (“The Restatement is careful to identify those violations that are actionable when committed by a state, Restatement (Third) § 702”);

Iwanowa, supra,

67 F.Supp.2d at 444 (“The

Kadic

Court further noted that section 702 [of the Restatement] ... identifies violations that are actionable when committed by a state, whereas section 404 of the Restatement lists a more limited category of violations of universal concern”). Plaintiffs do not dispute this point.

153

Thus, the question is whether, in connection with their racial discrimination claim, plaintiffs have alleged facts sufficient to hold Rio Tinto liable as a state actor.

As noted earlier, courts look to the “[t]he color of law jurisprudence of 42 U.S.C. § 1983” in assessing whether a private defendant is a state actor for purposes of jurisdiction under the ATCA.

Kadic, supra,

70 F.3d at 245 ;

Unocal V, supra,

110 F.Supp.2d at 1305 ;

Unocal II, supra,

176 F.R.D. at 345 ;

Unocal I, supra,

963 F.Supp. at 890 . Unlike their claim that Rio Tinto is liable for war crimes committed by PNG and its Defense Force, plaintiffs’ racial discrimination claim concerns the purported actions of Rio Tinto itself. Consequently, the “mirror image” analysis utilized in assessing whether plaintiffs’ war crimes claim adequately plead state action or proximate cause is not required here. See

Tarkanian, supra,

488 U.S. at 193 , 109 S.Ct. 454 .

In § 1983 cases where a private defendant has allegedly harmed the plaintiff, courts use one of four approaches to determine whether the state was sufficiently involved that the conduct may be treated as state action. These are: (1) whether the private entity was performing a traditional public function; (2) whether the entity acted under state compulsion; (3) whether there was a sufficiently close nexus between the government and the challenged action; and (4) whether the private entity and the state were joint participants in the act. See

George v. Pacific-CSC Work Furlough,

91 F.3d 1227, 1230 (9th Cir.1996), cert. denied, 519 U.S. 1081 , 117 S.Ct. 746 , 136 L.Ed.2d 684 (1997);

Gallagher v. Neil Young Freedom Concert,

49 F.3d 1442, 1447 (10th Cir.1995). See also

Jensen v. Lane County,

222 F.3d 570, 574 (9th Cir.2000);

Sutton, supra,

192 F.3d 826, 835-36 (9th Cir.1999). It is unclear whether these approaches are different in operation or merely alternative ways of characterizing the fact intensive decision as to whether state action is present. See

Lugar v. Edmondson Oil Co.,

457 U.S. 922, 939 , 102 S.Ct. 2744 , 73 L.Ed.2d 482 (1982). See also

id.

(“The Court suggested that that ‘something more’ which would convert the private party into a state actor might vary with the circumstances of the case”);

Burton, supra,

365 U.S. at 722 , 81

*1154

S.Ct. 856, (“[T]o fashion and apply a precise formula for recognition of state responsibility under the Equal Protection Clause is an impossible task which [t]his Court has never attempted” (citation and internal quotation marks omitted));

Howerton v. Gabica,

708 F.2d 380, 383 (9th Cir.1983) (“While these factors are helpful in determining the significance of state involvement, there is no specific formula for defining state action”);

Ouzts v. Maryland, Nat’l Ins. Co.,

505 F.2d 547, 550 (9th Cir.1974) (“It is also a truism by now that there is no rigid formula for measuring state action for purposes of section 1983 liability”).

Plaintiffs here invoke the joint action and/or governmental nexus approaches. In order to prove state action under these tests, “the court must find a sufficiently close nexus between the state and the private actor ‘so that the action of the latter may be fairly treated as that of the State itself.’ ”

Jensen, supra,

222 F.3d at 575 (quoting

Jackson v. Metropolitan Edison Co.,

419 U.S. 345, 350 , 95 S.Ct. 449 , 42 L.Ed.2d 477 (1974)). The government’s regulation of, or provision of substantial funding to, a private party is not sufficient to constitute state action. See

Blum v. Yaretsky,

457 U.S. 991, 1011 , 102 S.Ct. 2777 , 73 L.Ed.2d 534 (1982);

Jensen, supra,

222 F.3d at 575 . Rather, the “State [must be] so far insinuated into a position of interdependence with the [private party] that it was a joint participant in the enterprise.”

Jackson, supra,

419 U.S. at 357-58 , 95 S.Ct. 449 . See also

Burton, supra,

365 U.S. at 725 , 81 S.Ct. 856 (the private party and the state must be “joint participant[s] in the challenged activity”).

Plaintiffs’ racial discrimination claim asserts that defendants’ decision to build the mine, take their land, destroy their environment, and encourage military action was, at least in part, motivated by racial discrimination. Additionally, it alleges that Rio Tinto paid native Bougainvilleans lower wages than workers of other races. In support of their assertion that this conduct constitutes state action, plaintiffs allege,

inter alia,

that “the financial stake of the PNG government [in the Panguna Mine] effectively turned the copper mine into a joint venture between PNG and Rio and allowed Rio to operate under color of state law.”

154

More specifically, plaintiffs allege that: “(a) PNG conferred a mining concession [on] Rio; (b) Rio ■ and PNG were co-owners of the mine; (c) PNG profited by virtue of the mining operation; (d) PNG allowed Rio to exercise the power of eminent domain and to dispossess the native people of Bougainville whenever and wherever Rio decided to do so; (e) Rio encouraged and assisted in the PNG military effort to suppress the revolution ...; (f) Rio’s actions were done with the concurrence and authority of the PNG government; and (g) the PNG military acted as Rio’s agent in attacking and blockading the people of Bougainville.”

155

Taken together, these facts allege “something more” than that the PNG government regulated and/or funded the Pan-guna Mine. See

Sutton, supra,

192 F.3d at 835 (“When addressing whether a private party acted under color of law, we therefore start with the presumption that private conduct does not constitute governmental action. In order for private conduct to constitute governmental action, ‘something more’ must be present”). Plaintiffs assert, in essence, that PNG made its governmental power of eminent domain available to Rio Tinto so that it could build the mine, and that, because of its profit participation in the mine, PNG took no steps to control or minimize the negative impact of Rio Tinto’s mining op

*1155

erations. In connection with this motion, defendants have requested that the court take judicial notice of the Copper Act, which codified the agreement between Rio Tinto’s subsidiary, BCL, and PNG regarding the mine. The Act arguably gives rise to an inference that PNG in fact affirmatively endorsed Rio Tinto’s actions with respect to the mine, and lends support to plaintiffs’ allegations that Rio Tinto and PNG were engaged in a joint venture, and hence joint action, as respects its operation.

For this reason, the court finds that the factual allegations supporting plaintiffs’ claim that Rio Tinto and PNG operated the mine as joint venture partners sufficiently plead state action to confer jurisdiction over the ATCA racial discrimination claim. Cf.

Iwanowa, supra,

67 F.Supp.2d at 445-46 (“... the Complaint pleads sufficient facts to support a claim that from 1942-1945, Defendants were acting as

de facto

state actors. The Complaint alleges that the Nazi army abducted adolescents in occupied territories, including Iwanowa, and transported them to Germany to work as slave laborers. The Complaint also asserts that Sauckel, the Nazi Plenipotentiary General for the Allocation of Labor, encouraged German industries to bid for forced laborers in order to meet production quotas and to increase their profits. The Complaint further alleges that as a result of Sauckel’s solicitation, Ford Werke purchased forced laborers, including Iwanowa, from the Nazis. Hence, the Complaint alleges that Defendants acted in close cooperation with Nazi officials in compelling civilians to perform forced labor”);

Unocal II, supra,

176 F.R.D. at 348 (finding allegations “that Unocal (1) conspired with its subsidiaries, affiliates and others to cause injury to plaintiffs, ... by entering into the Project with SLORC; (2) similarly conspired to allow SLORC to use the Project to launder money in violation of 18 U.S.C. § 1956 ; and (3) made efforts to conceal SLORC’s repressive activities” sufficient “to support subject-matter jurisdiction under the ATCA because, when construed in the light most favorable to plaintiffs, they suggest that Unocal may have been ‘a willful participant in joint action with the State or its agents.’ In other words, defendants’ challenged actions are allegedly inextricably intertwined with those of the SLORC government,” quoting

Collins, supra,

878 F.2d at 1154 );

Unocal I, supra,

963 F.Supp. at 891 (“Here, plaintiffs allege that SLORC and MOGE are agents of the private defendants; that the defendants are joint venturers, working in concert with one another; and that the defendants have conspired to commit the violations of international law alleged in the complaint in order to further the interests of the Yadana gas pipeline project.... Plaintiffs have alleged that the private [defendants] were and are jointly engaged with the state officials in the challenged activity, namely forced labor and other human rights violations in furtherance of the pipeline project. These allegations are sufficient to support subject-matter jurisdiction under the ATCA”).

iv. Environmental Harms

The majority of the allegations in the first amended complaint concern harm to the environment and health of the Bou-gainvillean people allegedly caused by Rio Tinto’s mining operations. In their motion to dismiss, defendants assert that the court lacks subject matter jurisdiction over these environmental claims because they do not allege a violation of the law of nations. They contend that international law prohibits only activities that “cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”

156

Plaintiffs do not assert

*1156

that Rio Tinto’s and/or PNG’s conduct harmed the environment beyond PNG (or Bougainville, for that matter). Consequently, defendants maintain, no claim under international law can be stated.

157

Plaintiffs counter that they do not simply allege harm to the environment. Rather, they assert, the complaint pleads that defendants’ acts of environmental contamination have deprived Bougainvilleans of their right to life, health, and security of the person.

158

Plaintiffs assert that the first amended complaint “alleges that Rio’s extraordinary pollution of the island of Bougainville caused widespread death[] and serious illness...,” and that “international law cases... support a finding that massive environmental destruction resulting in loss of life violates the rights to life and health.”

159

They contend their allegations regarding environmental damage state a cognizable claim for violation of international law because the principle of “sustainable development” imposes a duty on state actors to avoid “ ‘serious and irreversible’ environmental or human health effects from development activities,” and because the complaint alleges a violation of the United Nations Convention on the Law of the Sea (“UNCLOS”), which prohibits certain types of pollution of the marine environment.

160

The court will consider these points in turn.

(a) Rights To Life And Health

The parties’ experts dispute whether the rights to life and health are recognized principles of international law. Plaintiffs’ expert, Professor Gunther Handl, contends “.. .that the human right to life, including the right to enjoy life, is a fundamental right under international law.”

161

As evidence of this, he cites the International Covenant on Civil and Political Rights (“ICCPR”), the Universal Declaration of Human Rights, the American Declaration of the Rights and Duties of Man, the American Convention on Human Rights, the African Charter of Human and Peoples’ Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms, and the Charter of Fundamental Rights of the European Union.

162

Handl asserts that the right to life can be violated by “serious environmental degradation,”

163

noting a report prepared by the Inter-American Commission, which states that

“ ‘respect for the inherent dignity of the person is the principle which underlies the fundamental protections of the right to life and to preservation of physical well-being. Conditions of severe environmental pollution, which may cause serious physical illness, impairment and suffering on the part of the local populace, are inconsistent with the right to be respected as a human being.... The realization of the right to life, and to physical security and integrity is necessarily related to and in some ways dependent upon one’s physical environment. Accordingly, where environmental contamination and degradation pose a persistent threat to human life and health, the foregoing rights are implicated.’ ”

164

Handl also cites the

Case Concerning The Gabcikovo-Nagymaros Project (Hungary

*1157

v.

Slovakia),

165

decided by the International Court of Justice, which held that

“ ‘[t]he protection of the environment is ... a vital part of contemporary human rights doctrine, for it is a

sine qua non

for numerous human rights such as the right to health and the right to life itself. It is scarcely necessary to elaborate on this, as damage to the environment can impair and undermine all the human rights spoken of in the Universal Declaration and other human rights instruments.’ ”

166

Like the right to life, Handl asserts that the right to health is an established principle of international law, and that, “in relation to environmentally injurious activities that threaten human health and well-being[,] there is general recognition of the fact that such activities also may abridge basic human rights of the victims concerned.”

167

In support of this proposition, he cites several treaties and resolutions, including the Stockholm Declaration on the Human Environment, a report of the World Commission on Environment and Development, and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights.

168

Notably, he concludes his discussion with the following statement: “While these documents do not provide sufficient evidence of international practice to support a claim to the existence in present-day international law of a separate human right to environmental protection, they underline the general acceptance among states of a ‘right to health’ as an established international human right.”

169

Defendants acknowledge that some of the treaties and/or agreements Handl cites recognize a right to life and/or a right to health. Nonetheless, they contend that plaintiffs have not demonstrated that violation of these rights via environmental harm is “a specific, universal, and obligatory” norm outlawed by international law. See

Hilao II, supra,

25 F.3d at 1475. See also

Hilao III, supra,

103 F.3d at 794 (“Actionable violations of international law [under § 1350] must be of a norm that is specific, universal, and obligatory”). Defendants challenge, for example, Handl’s reliance on the report of the Inter-American Commission. Their expert, Professor Barry Carter, notes pointedly that the Commission’s work was ultimately documented in the American Convention on Human Rights, which does

not

address issues of environmental harm.

170

Furthermore, defendants contend, “the United States has refused to sign or ratify [the American Convention on Human Rights for] ... [more than] 32 years, because the Convention’s definition of ‘right to life’ is so broad that it expressly conflicts with U.S. state and federal law on matters including abortion and capital punishment.”

171

Having reviewed the American Convention on Human Rights, the court agrees that it does not specifically address human rights deprivations caused by environmental degradation.

172

The court also considers relevant the fact that the United States has refused to ratify the Convention for more than three decades.

173

See

Stan

*1158

ford v. Kentucky,

492 U.S. 361, 390, n. 10 , 109 S.Ct. 2969 , 106 L.Ed.2d 306 (1989) (noting that Article 4(5) of the American Convention on Human Rights has been signed, but not ratified, by the United States);

Garza v. Lappin,

253 F.3d 918, 925 (7th Cir.2001) (“More recently, the [Charter of the Organization of American States] has developed an American Convention on Human Rights, which creates an Inter-American Court of Human Rights. Under the American Convention, the Inter-American Court’s decisions are potentially binding on member nations. The rub is this:

although the United States has signed the American Convention, it has not ratified it,

and so that document does not yet qualify as one of the ‘treaties’ of the United States that creates binding obligations” (emphasis added)).

While Professor Handl identifies several multinational agreements and/or treaties, he does not describe the parameters of the rights to life and health mentioned therein, nor detail what type of conduct violates those rights.

174

Consequently, the court cannot conclude that the rights are sufficiently “specific” that their alleged violation states a claim under the ATCA, or that nations universally recognize they can be violated by perpetrating environmental harm.

175

See

Aguinda v. Texaco, Inc.,

No. 93-Civ.7527, 1994 WL 142006 , *7 (S.D.N.Y. Apr. 11, 1994) (“Not all conduct which may be harmful to the environment, and not all violations of environmental laws, constitute violations of the law of nations”).

Additionally, Handl provides no information concerning the number of nations that have signed these agreements and/or treaties, or, more specifically, whether the United States and/or Papua New Guinea are parties to them. Because plaintiffs base their ATCA claims on the law of nations, rather than treaties, they must

*1159

demonstrate that defendants’ conduct breached a “universal” norm of international law. See

Beanal, supra,

197 F.3d at 167 (“... the ATS ‘applies only to shockingly egregious violations of universally recognized principles of international law....’ Beanal fails to show that these treaties and agreements enjoy universal acceptance in the international community”);

Filartiga, supra,

630 F.2d at 888 (“It is only where the nations of the world have demonstrated that the wrong is of mutual and not merely several, concern, by means of express international accords, that a wrong generally recognized becomes an international law violation within the meaning of the statute”). Plaintiffs have failed to make such a showing here.

Indeed, some of the authorities upon which plaintiffs rely — i.e., the Rio Declaration and the Stockholm Declaration — undermine their claim that defendants’ conduct violates recognized international law. As the court explained in

Beanal, supra:

“Principle 2 on the first page of the Rio Declaration asserts that states have the ‘sovereign right to exploit their own resources pursuant to their own environmental and developmental policies,’ but also have ‘the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment or other States or areas beyond the limits of national jurisdiction.’ ”

Beanal, supra,

197 F.3d at 167, n. 6 .

Similarly, the Stockholm Declaration does “not set forth ... specific proscriptions,” but references “in a general sense ... the responsibility of nations to insure that activities within their jurisdiction do not cause damage to the environment beyond their borders.”

Amlon Metals, supra,

775 F.Supp. at 671 . Plaintiffs do not allege that Rio Tinto’s mining activities on Bou-gainville have affected environmental conditions beyond the island. Under the Rio and Stockholm Declarations, therefore, it is possible that defendants’ conduct may not violate international law.

Plaintiffs have the burden of proving that the court has subject matter jurisdiction under 28 U.S.C. § 1350 . After reviewing the complaint, the ease law, and the expert declarations and authorities cited therein, the court finds that plaintiffs have failed to meet their burden in this regard. Courts addressing the issue have consistently determined that allegations of environmental harm do not state a claim under the law of nations. See

Beanal, supra,

197 F.3d at 167 (“The sources of international law cited by Beanal and the amici merely refer to a general sense of environmental responsibility and state abstract rights and liberties devoid of articu-lable or diseernable standards and regulations to identify practices that constitute international environmental abuses or torts.... Therefore, the district court did not err when it concluded that Beanal failed to show in his pleadings that Free-port’s mining activities constitute environmental torts or abuses under international law”);

Amlon Metals, supra,

775 F.Supp. at 671 (dismissing claims regarding environmental harm under Rule 12(b)(1) “[b]e-cause the complaint contains no clear allegation of a violation of the law of nations”). See also

Jota v. Texaco, Inc.,

157 F.3d 153, 159 (2d Cir.1998) (“We express no view on whether the plaintiffs have alleged conduct by Texaco that violates the law of nations, whether an ATA suit for environmental misconduct, alleged to violate the law of nations, may be brought against a nongovernmental entity under the ATA, or how the

forum non conveniens

balance for ATA claims is to be struck when alien plaintiffs select a United States forum for a suit against a domestic corporation”);

Aguinda II, supra,

142 F.Supp.2d at 552 (“First, the specific claim plaintiffs purport to bring under the ATCA — that the Consortium’s oil extraction activities violated

*1160

evolving environmental norms of customary international law — lacks any meaningful precedential support and appears extremely unlikely to survive a motion to dismiss”).

The court finds these authorities persuasive despite the fact that none involved a claim based on the “right to life” or “right to health.” The relevant inquiry in assessing jurisdiction is not how plaintiffs characterize the conduct alleged in the complaint (i.e., environmental harm or deprivation of the rights to life and health), but whether “a specific, universal, and obligatory” norm prohibits the activity. See

Hilao II, supra,

25 F.3d at 1475. The complaints considered in

Beanal

and

Amlon Metals

alleged the same type of injury plaintiffs claim here. See

Beanal, supra,

969 F.Supp. at 382-83 (“As set forth in the complaint, Plaintiff alleges that Freeport’s mining operations and drainage practices have resulted in environmental destruction

with human costs to the indigenous people.

The mine itself has hollowed several mountains, re-routed rivers, stripped forest and increased toxic and non-toxic materials and metals in the river system. Another culprit is discharged water containing tailings from Freeport’s mining operations, for it is from this discharge that a stream of environmental and human problems flow, including: 1) pollution, disruption and alteration of natural waterways leading to deforestation, 2)

health safety hazards and starvation,

3) degradation of surface and ground water from tailings and solid hazardous waste” (internal citations omitted) (emphasis added));

Amlon Metals, supra,

775 F.Supp. at 670 (“The Complaint also alleges that the material may present imminent and substantial danger to human health and to the environment”). As in

Beanal

and

Amlon,

the court concludes that plaintiffs here have failed to demonstrate that Rio Tinto’s alleged environmental torts violated a “specific, universal, and obligatory” norm of international law. Accordingly, it finds that it lacks jurisdiction to adjudicate Count III of the complaint, and grants defendants’ motion to dismiss the claim as a result.

(b) Sustainable Development And The United Nations Convention On The Law Of The Sea

Plaintiffs additionally assert that their allegations of environmental harm state an ATCA claim under the principle of “sustainable development” and the United Nations Convention on The Law of the Sea (“UNCLOS”).

176

Professor Handl explains that the principle of sustainable development “is generally understood to mean ‘development that meets the needs of the present without compromising the ability of the future generations to meet their own needs.’ ”

177

He asserts that it “implies specific substantive duties, such as the obligation to avoid ‘serious and irreversible’ environmental or human health effects from development activities and the obligation to manage of toxic or hazardous chemicals and wastes in an ‘environmentally sound’ manner.”

178

While Handl’s discussion of the principle spans six pages, he nonetheless fails to articulate a “specific, universal, and obligatory” norm of the type that will support a claim for violation of the law of nations. Indeed, as defendants note,

179

Handl concedes that the principle may be “too broad a concept to be legally meaningful.”

180

Because the court cannot identify the parameters of the right created by the principle of sustainable develop

*1161

ment, it concludes that it cannot form the basis for a claim under the ATCA. See

Hilao III, supra,

103 F.3d at 794 ;

Hilao II, supra,

25 F.3d at 1475;

Beanal, supra,

969 F.Supp. at 370 (“To be recognized as an international tort under § 1350, the alleged violation must be definable, obligatory (rather than hortatory), and universally condemned”).

As respects UNCLOS, plaintiffs contend that, if proved, the facts alleged in Count VI would establish a violation of the convention, and thus that the claim should survive a motion to dismiss.

181

UNC-LOS — an international treaty that prohibits certain acts of pollution in the marine environment — has been ratified by 166 nations, including PNG. The United States has not ratified the treaty.

182

Plaintiffs assert that Rio Tinto’s operation of the mine violated two treaty provisions: (1) one requiring that “states take ‘all measures ... that are necessary to prevent, reduce and control pollution of the marine environment’ that involves ‘hazards to human health, living resources and marine life through the introduction of substances into the marine environment;’ ” and (2) another mandating that states “adopt laws and regulations to prevent, reduce, and control pollution of the marine environment caused by land-based sources.”

183

Although the United States has not ratified UNCLOS, it has signed the treaty. Moreover, the document has been ratified by 166 nations and thus appears to represent the law of nations. See

United States v. State of Alaska,

503 U.S. 569, 588, n. 10 , 112 S.Ct. 1606 , 118 L.Ed.2d 222 (1992) (“The United States has not ratified [the United Nations Convention on the Law of the Sea], but has recognized that its baseline provisions reflect customary international law”);

Mayaguezanos por la Salud y el Ambiente v. United States,

198 F.3d 297, 305, n. 14 (1st Cir.1999) (“Mayagueza-nos refers to the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The Convention has been signed by the President, but it has not yet been ratified by the Senate. Consequently, we refer to UNCLOS only to the extent that it incorporates customary international law, though we also note that the United States ‘is obliged to refrain from acts that would defeat the object and purpose of the agreement,’ ” quoting Restatement, § 312(3));

R.M.S. Titanic, Inc. v. Haver,

171 F.3d 943, 965, n. 3 (4th Cir.1999) (“Within this economic zone, a nation may exercise exclusive control over economic matters involving fishing, the seabed, and the subsoil, but not over navigation. See United Nations Convention on the Law of the Sea, Dec. 10, 1982. Even though the United States has not yet ratified this treaty, it generally recognizes this 200-mile economic zone”);

Mayaguezanos por la Salud y el Ambiente v. United States,

38 F.Supp.2d 168, 175, n. 3 (D.P.R.1999) (“The Senate has yet to ratify UNCLOS III. However, pending ratification or rejection by the Senate, ‘the United States is bound to uphold the purpose and principles of the agreement to which the executive branch has tentatively made the United States a party.’ ... Furthermore, there is a consensus among commentators that the provisions of UNCLOS III reflect customary international law, and are thus binding on all other nations, signatory or non-signatory,” citing

United States of America v. Royal Caribbean Cruises, Ltd.,

24 F.Supp.2d 155, 159 (D.P.R.1997) and Carol Elizabeth Remy,

Note: U.S. Territorial Sea Extensions: Jurisdiction and International Environmental Protection,

16 Fordham Int’l L.J. 1208, 1211-12 (1993)),

*1162

affd. on other grounds, 198 F.3d 297 (1st Cir.1999).

Because UNCLOS reflects customary international law, plaintiffs may base an ATCA claim upon it. Defendants argue that the court should nevertheless dismiss the claim because UNCLOS does not cover the activities alleged, and because plaintiffs have not exhausted national and international remedies. Citing plaintiffs’ allegation that waste from the mine extends “several kilometers” into Empress Bay, defendants contend that UNCLOS governs only pollution of the “open sea,” i.e., international waters beyond the twelve mile limit of sovereign territorial jurisdiction. Additionally, defendants assert, UNCLOS requires the exhaustion of national remedies, and provides that disputes arising under it will be adjudicated by an international tribunal in Hamburg, Germany.

184

It is true that plaintiffs allege that “Mailing accumulated at the mouth of the river, creating an artificial cape covering 1000 hectares and stretching several kilometers into the Empress Augusta Bay.”

185

The complaint contains several additional allegations regarding pollution of the Bay, however, and specifically alleges that Rio Tinto polluted the Pacific Ocean:

• “To build the mine, Rio chemically defoliated, bulldozed and sluiced off an entire mountainside of pristine rain forest. During the years of the mine’s operations, billions of tons of toxic mine waste was generated and dumped onto the land and into pristine waters, filling major rivers with tailings,

polluting a major bay dozens of miles away, and the Pacific Ocean as

well.”

186

• “The tailings that did not remain on the Jaba River were deposited in Empress Augusta Bay. The fish in the Bay, which were a major food source, soon disappeared and died.”

187

• “It is estimated that one-half of the tailings have remained in the valley, while finer portions have been carried into the Empress Augusta Bay.”

188

• “By the mid-1980s, some 8000 hectares of the Empress Augusta Bay were covered with tailings to a copper concentration greater than 500ppm (parts per million).”

189

Given these allegations, and the lack of any proof at this stage of the proceedings regarding the extent of the pollution in Empress Augusta Bay and/or the Pacific Ocean, the court concludes that plaintiffs have adequately stated a claim for violation of the customary international law reflected in UNCLOS. As discussed in section II.A.2.a.,

supra,

it is irrelevant that UNCLOS may require the exhaustion of national remedies, and/or require that plaintiffs bring suit in Germany, because plaintiffs sue here under the ATCA, and the ATCA does

not

require the exhaustion of national remedies or compliance with the terms of the treaty. For these reasons, the court denies defendants’ motion to dismiss plaintiffs’ claim based on the violation of international law as reflected in UNCLOS.

190

*1164

B. Motion To Dismiss On

Forum Non Conveniens

Grounds

In addition to asserting that the court lacks subject matter jurisdiction to hear the action, defendants argue that plaintiffs’ complaint should be dismissed on

forum non conveniens

grounds.

191

They contend that Papua New Guinea is an adequate alternative forum, and that the balance of public and private interests weighs in favor of having the action heard in the courts of that nation. Defendants assert, alternatively, that either Australia or Britain is a more appropriate forum than the United States in which to have the action tried, and urge the court to dismiss in favor of one of these countries in the event it determines that PNG is inadequate for

forum non conveniens

purposes. Plaintiffs assert that the court should deny this aspect of defendants’ motion because they have failed to demonstrate that any of PNG, Australia or Britain is an adequate alternative forum.

192

1. Legal Standard Governing

Forum Non Conveniens

Dismissals

“[T]he standard to be applied [to a motion for dismissal on the ground of

forum non conveniens

] is whether ... defendants have made a clear showing of facts which ... establish such oppression and vexation of a defendant as to be out of proportion to plaintiffs convenience, which may be shown to be slight or nonexistent. ...”

Cheng v. Boeing Co.,

708 F.2d 1406, 1410 (9th Cir.1983). Applying this standard, the court should treat

“forum non conveniens

as an exceptional tool to be employed sparingly,” and should not “perceive it as a doctrine that compels plaintiffs to choose the optimal forum for their claim.”

Ravelo Monegro v. Rosa,

211 F.3d 509, 514 (9th Cir.2000).

To obtain dismissal on

forum non conveniens

grounds, defendants must demonstrate that an adequate alternative forum exists, and that private and public interests favor trial in the alternative forum. See

Piper Aircraft Co. v. Reyno,

454 U.S. 235, 254 , 102 S.Ct. 252 , 70 L.Ed.2d 419 (1981);

Lueck v. Sundstrand Corp.,

236 F.3d 1137, 1143 (9th Cir.2001);

Jones v. GNC Franchising, Inc.,

211 F.3d 495, 499, n. 22 (9th Cir.2000);

Cheng v. Boeing Co.,

708 F.2d 1406, 1411 (9th Cir.1983).

Relevant “private interests” include: (1) the relative ease of access to sources of proof; (2) the availability of compulsory process for unwilling witnesses; (3) the comparative cost of obtaining willing witnesses; (4) the possibility of a view of any affected premises; (5) the ability to enforce any judgment eventually obtained; (6) and “all other practical problems that make trial of a case easy, expeditious and inexpensive.”

Gulf Oil Corp. v. Gilbert,

330 U.S. 501, 508 , 67 S.Ct. 839 , 91 L.Ed. 1055 (1947), superseded by statute on other grounds as recognized in

Hartford Fire Ins. Co. v. Westinghouse Elec. Corp.,

725 F.Supp. 317 (S.D.Miss.1989). See also

Rosa, supra,

211 F.3d at 512;

Nebenzahl v. Credit Suisse,

705 F.2d 1139, 1140 (9th Cir.1983). “Public interest factors,” by contrast, include: (1) court congestion; (2) the unfairness of burdening citizens in an unrelated forum with jury duty; (3) the interest in having localized controversies decided at home; (4) the interest in trying the case in a forum familiar with the applicable law; and (5) the interest in avoiding unnecessary conflicts of laws.

Gulf Oil, supra,

330 U.S. at 508-09 , 67 S.Ct. 839 ;

Rosa, supra,

211 F.3d at 512. The defendant bears the burden of showing that, in light of these factors, “exceptional circumstances” warrant dis

*1165

missal on

forum non conveniens

grounds. See

Ioannidis/Riga v. M/V Sea Concert,

132 F.Supp.2d 847, 861 (D.Or.2001);

Magellan Real Estate Investment Trust v. Losch,

109 F.Supp.2d 1144, 1148 (D.Ariz.2000). Ultimately, the determination is committed to the sound discretion of the district court.

Lueck, supra,

236 F.3d at 1143 .

2. Papua New Guinea

a. Whether It Is An Adequate Forum

To demonstrate that PNG is an adequate forum, defendants must show that “(1) they are amenable to process [there], and (2) the subject matter of the lawsuit is cognizable [there] so as to provide plaintiff[s] appropriate redress.”

Bodner v. Banque Paribas,

114 F.Supp.2d 117, 132 (E.D.N.Y.2000). See also

Piper, supra,

454 U.S. at 254, n. 22 , 102 S.Ct. 252 ;

AAR Intern, Inc. v. Nimelias Enter. S.A.,

250 F.3d 510, 524 (7th Cir.2001) (“The court must first determine that an adequate alternative forum is available to hear the case, meaning that all parties are within the jurisdiction of the alternative forum and amenable to process there, and that the parties would not be treated unfairly or deprived of all remedies if the case were litigated in the alternative forum”);

Aguinda II, supra,

142 F.Supp.2d at 539 (“The requirement of an adequate alternative forum ‘ordinarily ... will be satisfied when the defendant is “amenable to process” in the other jurisdiction’ ”).

i. Amenability To Process

Defendants’ agreement to subject themselves to service of process in the foreign jurisdiction is sufficient to satisfy the first prong of the test. See

Aguinda II, supra,

142 F.Supp.2d at 539. Because defendants in the present case have indicated that they will consent to jurisdiction in PNG, the first element is met.

193

ii. Whether Plaintiffs’ Claims Are Cognizable In PNG

To demonstrate that plaintiffs’ claims are cognizable in PNG’s courts such that they can obtain appropriate redress, defendants must establish that PNG permits litigation of the subject matter of the dispute, that it provides adequate procedural safeguards, and that the remedy available in the alternative forum is not so inadequate as to amount to no remedy at all. See

Piper, supra,

454 U.S. at 255, n. 22 , 102 S.Ct. 252 (“dismissal would not be appropriate where the alternative forum does not permit litigation of the subject matter of the dispute”);

Lueck, supra,

236 F.3d at 1143 (“The foreign forum must provide the plaintiff with some remedy for his wrong in order for the alternative forum to be adequate.... However, it is only in ‘rare circumstances ... where the remedy provided by the alternative forum ... is so clearly inadequate or unsatisfactory, that it is no remedy at all,’ that this requirement is not met,” quoting

Lockman Found. v. Evangelical Alliance Mission,

930 F.2d 764, 768 (9th Cir.1991));

Ceramic Corp. of Am. v. Inka Maritime Corp.,

1 F.3d 947 , 949 (9th Cir.1993) (“Even where the defendant is amenable to process in the alternative forum, however, there may be ‘rare circumstances’ in which the ‘remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all,’ ” quoting

Piper, supra,

454 U.S. at 254 & n. 10, 102 S.Ct. 252 ).

(a) PNG Permits Litigation Of The Subject Matter Of The Claims

To satisfy this aspect of the test, defendants proffer expert declarations stating that plaintiffs can pursue their claims in PNG. See

Mercier v. Sheraton Intern.,

*1166

Inc.,

981 F.2d 1345, 1352 (1st Cir.1992) (citing

Lockman Foundation, supra,

930 F.2d at 768 , for the proposition that “moving party may demonstrate [the] adequacy of [the] alternative forum’s law through [the] affidavits and declarations of experts”). Defendants’ expert, Teresa Anne Doherty, a former Justice of the National and Supreme Courts of PNG, for example, states that she has reviewed the complaint, and that she believes “the rights claimed by plaintiffs ... are recognized and protected by the Constitution of the Independent State of Papua New Guinea.”

194

Plaintiffs counter with the declaration of Brian Danesbury Brunton, also a former justice of PNG’s National and Supreme Courts.

195

Addressing whether plaintiffs’ claims are cognizable under PNG law, Brunton agrees that “[m]any of the human rights claims ... would be, in theory, actionable in PNG.”

196

He asserts, however, that “similar complaints arising out of the Bougainville conflict, properly before the courts, were not adjudicated, ... indicating] that the relief available in PNG is more theoretical than real.”

197

Additionally, Brunton contends that plaintiffs’ “claims ... for violations of international environmental rights [and] the medical monitoring claim currently are not recognized under PNG law. They might be [in the future], but the issue is open to debate and interpretation.”

198

Having considered the experts’ declarations, the court concludes that defendants have demonstrated that PNG permits litigation of the subject matter of the dispute. The court bases this conclusion on (1) Brunton’s admission that PNG recognizes the majority of plaintiffs’ claims for human rights violations, (2) his failure to explain why similar complaints were not adjudicated in PNG, and (3) the fact that the claims he asserts are not recognized under PNG law — i.e., for environmental harm — are also not cognizable under international law.

(b) Whether PNG Provides Adequate Procedural Safeguards And An Adequate Remedy

To establish that PNG is an adequate forum, however, defendants must also show that it provides procedural safeguards, and that the remedies it affords are “not so inadequate as to amount to no remedy at all.” With respect to procedural safeguards, defendants’ experts opine that PNG’s judicial system is independent and unbiased,

199

that it provides for class (or representative) actions,

200

that PNG law permits contingency fee arrangements,

201

and that discovery is liberal.

202

*1167

While plaintiffs do not dispute that PNG’s judiciary is independent and honest,

203

they do take issue with defendants’ remaining assertions.

204

Basically, the parties present a “battle of the experts” regarding the availability of contingency fee arrangements, liberal discovery, and class actions.

(i) Class Actions

Plaintiffs’ experts assert, for example, that PNG has no form of action comparable to the class action mechanism, while defendants’ experts contend that PNG’s representative action is akin to a Rule 23 class action. In addition to their experts’ declarations, defendants rely on

Carnie v. Esanda Finance Corp.

an opinion from the High Court of Australia interpreting that nation’s rule regarding representative actions. The rule is, apparently, identical to and interpreted the same as PNG’s court rule concerning representative actions.

205

Defendants cite the following language from

Carnie:

“It would be unprofitable and difficult to make a precise comparison between a representative action under r. 13 and a class action under r. 23 but we see no reason to doubt that the two rules could cover much common ground. The elaborate set of provisions contained in r. 23 would create some differences. But this does not seem to be of much moment for present purposes.”

206

This court is not persuaded that this excerpt from

Camie

proves that representative actions in PNG (or Australia) are, for purposes of

forum non conveniens

analysis, analogous to Rule 23 class actions. Consequently, the record contains contradictory evidence respecting the similarities between the procedural rules.

(ii) Contingency Fee Contracts

Similarly, the experts disagree as to whether contingency fee arrangements are permitted under PNG law. Defendants’ experts assert that PNG authorizes such agreements, citing section 66 of the Lawyer Act titled “Remuneration by Agreement.”

207

Section 66 provides:

“(1) A lawyer may make a written agreement with his client as to his remuneration in respect of contentious or non-contentious business done or to be done by him.

(2) An agreement referred to in Subsection (1)—

(a) May provide for the remuneration of the lawyer by a gross sum, or by commission or percentage or other wise, and at a greater or lesser rate than at which he would otherwise have been entitled to be remunerated; and

*1168

(b) may be made on the terms that the amount of the agreed remuneration either shall or shall not include all or any disbursements made by the lawyer. (3) If on motion by the client it appears to a Judge that the agreement is unfair or unreasonable, he may—

(a) reduce the amount agreed to be payable under the agreement; or

(b) direct that the costs of the business done by the lawyers be ascertained by taxation.

208

Defendants also cite a 1998 case decided by the Papua New Guinea National Court of Justice. In

Yapao Lawyers v. Yaliman Pawe & Others and Porgera River Alluvial Miners Ass’n.,

the court held that “[i]t is clear from § 66(2)(a) [of the Lawyers Act] that it is permissible to enter into a contingency fee arrangement in an agreement.”

209

In that case, the Yapao Lawyers entered into an agreement with plaintiffs Yaliman Pawe & Others and Porgera River Alluvial Miners Association, which provided as follows: “I agree that, unless the legal fees for Messrs. Yapao Lawyers are further negotiated they will be paid 10% of once only compensation package, at settlement which shall be calculated from backdated payment including, the initial lump sum payments as agreed by the Porgera River Alluvial Miners Association.”

210

Apparently, plaintiffs won a default judgment and thereafter were granted a total compensation package of 15,243,415 kinos — an amount determined by the Minister for Environment

&

Conservation. Thereafter, the attorneys attempted to collect 10% of this sum pursuant to their remuneration agreement.

The court ultimately determined that the amount of compensation that would be due the lawyers under the agreement was unreasonable, and exercised its authority pursuant to section 66(e) to review the value of the work performed. Nonetheless, the court’s statement regarding the availability of contingency fee contracts corroborates the clear language of section 66, and leads the court to conclude that such arrangements are permissible under PNG law.

The fact that the PNG court retains authority to review and reduce the compensation payable to an attorney under such a contract does not alter this conclusion, as federal courts have inherent power to conduct such a review as well. See, e.g.,

United States ex rel. Taxpayers Against Fraud v. General Electric Co.,

41 F.3d 1032, 1047 (6th Cir.1994) (“ As we said in

Krause v. Rhodes,

640 F.2d 214, 218 (6th Cir.), cert. denied, 454 U.S. 836 [, 102 S.Ct. 140 , 70 L.Ed.2d 117 ] ... (1981), ‘an attorney’s right to contract for a contingent fee is not completely beyond judicial control.’ A lawyer is first an officer of the court, and as such his commercial contractual rights must yield to his duty. The district judge has broad equity power to supervise the collection of attorney’s fees under contingency fee contracts”);

In re Agent Orange Product Liability Litigation,

818 F.2d 226, 240 (2d Cir.1987) (“It is well established that a district court, pursuant to its rulemaking authority or on an ad hoc basis, may review a contingency fee agreement”);

Novinger v. E.I. DuPont de Nemours & Co., Inc.,

809 F.2d 212, 217 (3d Cir.) (“In

Dunn v. H.K. Porter Co.,

602 F.2d 1105, 1108 (3d Cir.1979), ... we recognized that federal courts have the power to monitor contingent fee arrangements”), cert. denied, 481 U.S. 1069 , 107 S.Ct. 2462 ,

*1169

95 L.Ed.2d 871 (1987);

Rosquist v. Soo Line R.R.,

692 F.2d 1107 , 1111 (7th Cir.1982) (“The district court’s appraisal of the amount of the fee is ... justified by the court’s inherent right to supervise members of its bar”);

International Travel Arrangers, Inc. v. Western Airlines, Inc.,

623 F.2d 1255, 1277 (8th Cir.) (“The court has the power and the responsibility to monitor contingency fee agreements for reasonableness”), cert. denied, 449 U.S. 1063 , 101 S.Ct. 787 , 66 L.Ed.2d 605 (1980);

Allen v. United States,

606 F.2d 432, 435 (4th Cir.1979) (“The district courts’ supervisory jurisdiction over contingent fee contracts for services rendered in cases before them is well-established”);

Schlesinger v. Teitelbaum,

475 F.2d 137, 141 (3d Cir.) (“The district courts’ supervisory jurisdiction over contingent fee contracts for services rendered in cases before them is well-established”), cert. denied, 414 U.S. 1111 , 94 S.Ct. 840 , 38 L.Ed.2d 738 (1973).

211

Neither Brunton nor Rogers addresses section 66 or the

Yapao Lawyers

case. Rather, they assert in conclusory fashion that contingency fee contracts are illegal in PNG.

212

As they provide no basis for this opinion, and cite no authority, the court cannot credit this testimony in the face of the evidence to the contrary proffered by defendants.

Brunton and Rogers also assert that any advance against costs by attorneys representing plaintiffs would be problematic under PNG law. Brunton states:

“Theoretically, a lawyer can enter into an agreement with a client to lend the client a sum of money to cover the costs of an action. But this type of agreement runs the risk of attracting an action in maintenance or champerty. In a case involving the Mount Rare Mine, the Supreme Court has held that the common law actions of maintenance and cham-perty are available in Papua New Guinea. One of the three judges in that case was of the view that these actions would not be appropriate in cases involving legal aid. But there are still substantial risks involved because that was a minority view.”

213

Section 66 provides that a retainer agreement between lawyer and client “may be made on the terms that the amount of the agreed remuneration either shall or shall not include all or any disbursements made by the lawyer.” This appears to permit the lawyer to advance costs on the client’s behalf and to recover those costs, if at all, from the recovery obtained by the client at the conclusion of the litigation. Alternatively, it appears to permit the lawyer to require the client to reimburse costs regardless of the outcome of the case. Brunton does not dispute that lawyers are permitted to advance costs for their clients in PNG. He merely states that it is potentially problematic for them to do so.

214

Accordingly, on the record presently available, the court concludes that defendants have demonstrated that contingency fee contracts are available in PNG, and that lawyers are able to advance costs.

*1170

(iii) Discovery

As respects discovery procedures, plaintiffs’ experts declare that PNG courts cannot compel (1) testimony from anyone located outside the jurisdiction, (2) the production of documents by non-parties located outside the country, or (3) testimony from recalcitrant government witnesses. Defendants’ experts dispute these points.

215

Additionally, they assert that if this suit proceeds in the United States, “a Papua New Guinea Court [will] be unwilling, and probably jurisdictionally unable, to provide any assistance in any manner whatsoever, to any person or Court so as to further proceedings conducted in contravention of the [Compensation] Act.”

216

Stated otherwise, defendants contend that, because Papua New Guinea is not a signatory to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, the decision whether to provide discovery will rest with the PNG court, and it will likely choose not to provide assistance since this action was brought in violation of PNG’s Compensation Act.

217

iii. Conclusion Regarding Adequate Forum

Based on the current record, it is disputed whether PNG’s legal system provides for class action lawsuits and what type of discovery would be available to plaintiffs if they were required to litigate there. While it appears there would be no legal impediment to plaintiffs’ retention of contingency fee counsel, there is no evidence that there are lawyers who would be willing to undertake plaintiffs’ representation in PNG on that basis.

218

Nonetheless, the court finds that the unavailability of class actions and contingency fee counsel (if indeed such counsel are unavailable), as well as constraints on discovery, do not render Papua New Guinea an inadequate forum for

forum non conveniens

purposes. See

Satz v. McDonnell Douglas Corp.,

244 F.3d 1279 , 1283 (11th Cir.2001) (“The plaintiffs’ concerns about Argentine filing fees, the lack of discovery in Argentine courts, and their fear of delays in the Argentine courts do not render Argentina an inadequate forum. ‘[S]ome inconvenience or the unavailability of beneficial litigation procedures similar to those available in the federal district courts does not render an alternative forum inadequate,’ ” quoting

Borden, Inc. v. Meiji Milk Prods. Co.,

919 F.2d 822, 829 (2d Cir.1990));

Magnin v. Teledyne Continental Motors,

91 F.3d 1424, 1430 (11th Cir.1996) (“Magnin also points out, almost in passing, that if the case is tried in France he will not receive a jury trial, nor will he be able to obtain counsel through a contingency fee arrangement, because such fee arrangements are not permitted in France. As cherished as trial by jury is in our law, and as cherished as contingency fee arrangements have become to some plaintiffs and their attorneys, Magnin has not cited us to any Supreme Court or court of appeals decision giving such considerations substantial weight in

forum non conveniens

analysis. The argument is particularly weak in regard to contingency fees. In

*1171

Coakes v. Arabian American Oil Co.,

831 F.2d 572, 576 (5th Cir.1987), the Fifth Circuit held that the ban against contingency fees in England should not significantly influence the

forum non conveniens

determination”);

In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India in December, 1981,

809 F.2d 195, 199 (2d Cir.1987) (dismissing a United States class action in favor of a representative suit brought by the Indian government in India);

Aguinda II, supra,

142 F.Supp.2d at 540-41 (“Plaintiffs’ second objection to the adequacy of an Ecuadorian forum is that ‘Ecuador is Not an Adequate Forum For This Litigation Because Ecuador Does Not Recognize Class Actions and Has No Comparable Procedure to Grant Plaintiffs the Equitable Remedy They Are Principally Seeking.’ This, again, is unpersuasive. The class action mechanism, added to the Federal Rules of Civil Procedure in 1937, is ultimately nothing more than a ‘convenient procedural device,’ which most of the world’s nations have chosen not to adopt and the merits of which continue to be debated even in the United States. Its absence does not ordinarily render a foreign forum ‘inadequate’ for purposes of

forum non conveniens

analysis” (internal citations omitted));

Pavlov v. Bank of New York Co., Inc.,

135 F.Supp.2d 426, 434 (S.D.N.Y.2001) (“[Pjlaintiffs complain that there is no class action or comparable mechanism available under Russian law and that the filing of a claim requires payment of a state duty of 6 percent of the amount of damages sought. But the lack of a class action device is not a basis for concluding that a foreign forum is inadequate for

forum non conveniens

purposes”);

Stewart v. Adidas A.G.,

No. 96 Civ. 6670(DLC), 1997 WL 218431 , *8 (S.D.N.Y. Apr.30, 1997) (“the Second Circuit has specifically noted that the unavailability of contingency fee arrangements in an alternative forum may not be sufficient to preclude dismissal on

forum non conve-niens

grounds”);

Kristoff v. Otis Elevator Co.,

No. CIV. A. 96-4123, 1997 WL 67797 , *2 (E.D.Pa. Feb.14, 1997) (“The majority of courts reviewing plaintiffs ability to litigate in the foreign forum consider the absence of a contingency fee arrangement one of the balancing factors in a

forum non conveniens

analysis, not an argument against availability of an alternative forum”). The court thus finds that defendants have met their burden of demonstrating that PNG is an adequate forum.

Nonetheless, as discussed below, the possibility that plaintiffs would be unable to find lawyers willing to represent them on a contingent fee basis, and the inadequacy of discovery procedures, are relevant to the second aspect of

the forum non conveniens

test — i.e., assessing whether public and private interests favor dismissal. See

Murray v. British Broadcasting Corp.,

81 F.3d 287, 292 (2d Cir.1996) (“There is a division of authority on whether financial hardships facing a plaintiff in an alternative forum as a result of the absence of contingent fee arrangements may cause a forum to be deemed unavailable. The majority of courts deem a plaintiffs financial hardships resulting from the absence of contingent fee arrangements to be only one factor to be weighed in determining the balance of convenience after the court determines that an alternative forum is available. We agree with the majority rule” (internal citations omitted));

Reid-Walen v. Hansen,

933 F.2d 1390, 1398 (8th Cir.1991) (“As part of the

Gilbert

private interest analysis, courts must be sensitive to the practical problems likely to be encountered by plaintiffs in litigating their claim, especially when the alternative forum is in a foreign country. The district court must be alert to the realities of the plaintiffs position, financial and otherwise, and his or her ability as a practical matter to bring suit in the alternative forum. The district court failed to even consider this

*1172

factor” (internal citations and quotations omitted));

Doe v. Sun International Hotels, Ltd.,

20 F.Supp.2d 1328, 1330 (S.D.Fla.1998) (“The Court finds that there are significant practical reasons for trying the case in the United States. In the Bahamas the plaintiff would not be entitled to a jury trial and she would be unable to obtain a lawyer on a contingency fee basis. It is undisputed that the eighteen-year old plaintiff does not have the financial ability to bring a lawsuit in the Bahamas. Thus for all practical purposes the plaintiff would be unable to maintain a lawsuit in the Bahamas. Under the circumstances, the practicality factors weigh heavily in favor of a United States forum”);

MTS Securities, Inc. v. Creditanstalt-Bankverein,

No. 96-CV-0567E, 1997 WL 251482 , *5 (W.D.N.Y. May 1, 1997) (“The plaintiffs concede that the defendants are amenable to process in Austria but contend that ‘rare circumstances’ are present here because (1) the Austrian courts would require them to post a substantial bond before they could assert their claims in Austria, (2) Austrian law prohibits contingency fee arrangements, so the plaintiffs would be forced to pay significant attorney’s fees just to bring their claims in Austria, (3) litigation proceeds slowly in Austria and (4) the plaintiffs would not be entitled to recover punitive damages under Austrian law. The first two arguments relate to whether the plaintiffs could afford to bring their claims in Austria. In

Murray

the United States Court of Appeals for the Second Circuit held that whether the plaintiff has the financial resources to bring his claim in the alternative forum ‘may not be considered in determining the availability of an alternative forum but must be deferred to the balancing of interests relating to the forum’s convenience.’ Accordingly, the first two arguments will be examined when this Court weighs the relevant public and private interest factors,” quoting

Murray, supra,

81 F.3d at 292-93 );

Lugones v. Sandals Resorts, Inc.,

875 F.Supp. 821, 824 (S.D.Fla.1995) (denying a motion to dismiss on

forum non conveniens

grounds where a United States plaintiff injured on vacation in Jamaica lacked access to a jury trial or a contingent fee attorney in Jamaica). Accordingly, the court turns next to this aspect of the test.

b. “Exceptional Circumstances” Do Not Justify Dismissal

Since defendants have demonstrated the adequacy of the PNG forum, the court must consider whether “exceptional circumstances” warrant dismissal of the action. See

Piper, supra,

454 U.S. at 254 , 102 S.Ct. 252 . In this regard, it is important to note, as an initial matter, that one of the named plaintiffs is a resident of the United States. “[T]he Supreme Court has clearly and unambiguously established that courts should offer greater deference to the selection of a U.S. forum by U.S. resident plaintiffs when evaluating a motion to dismiss for

forum non

conveniens.”

Wiwa, supra,

226 F.3d at 102. See also

DiRienzo v. Philip Servs. Corp.,

232 F.3d 49, 62 (2d Cir.2000) (“We recently reaffirmed this holding, by noting that

Guidi

illustrates that a plaintiffs U.S. citizenship and residence is entitled to consideration in favor of retaining jurisdiction” (internal citations omitted)). Moreover, the Ninth Circuit recently cautioned that

“forum non conveniens

is an exceptional tool to be employed sparingly.”

Rosa, supra,

211 F.3d at 514. Hence, the court must consider whether defendants have “ ‘demonstrate^] that the ordinarily strong presumption favoring the plaintiffs’ chosen forum is countered by the private and public interest factors set out in

[Gulf Oil Corp. v.] Gilbert,

[ 330 U.S. 501 , 67 S.Ct. 839 , 91 L.Ed. 1055 (1947),] which weigh

*1173

so heavily in favor of the foreign forum that they overcome the presumption for plaintiffs’ choice of forum.’ ”

Aguinda II, supra,

142 F.Supp.2d at 547 (quoting

DiRienzo, supra,

232 F.3d at 56-57 ).

i. Private Interest Factors

Defendants argue that the private interest factors identified by the Supreme Court in

Gilbert

weigh in favor of dismissing the action so that it may be litigated in PNG. They assert that “[a]ll of the events which are alleged to form the basis for liability in this matter occurred overseas, primarily in Australia and Papua New Guinea. Virtually all witnesses and documentary evidence are also overseas, primarily in Australia and Papua New Guinea.”

219

In this regard, defendants identify the following “key witnesses” who are located either in PNG or Australia: the people of Bougainville; military and civilian employees of the governments of PNG and Australia; journalists and academics from PNG and Australia; and unnamed executives of CRA who were in charge of day-to-day operations at the mine.

220

Plaintiffs counter that defendants’ assertions regarding the location of witnesses do not satisfy the standard set forth in

Gates Learjet Corp. v. Jensen,

743 F.2d 1325 (9th Cir.1984).

221

There, the Ninth Circuit reversed a

forum non conveniens

dismissal because,

inter alia,

the “district court improperly focused on the number of witnesses in each location” rather than “examin[ing] the materiality and importance of the anticipated witnesses’ testimony and then determining] their accessibility and convenience to the forum.”

Id.

at 1335-36 . Here, defendants simply identify broad categories of potential witnesses. They do not specify specific individuals or explain the subjects concerning which they might testify. Accordingly, they have failed to meet their burden under

Gates Learjet.

Plaintiffs also assert that, despite the fact that a majority of the putative class members who might serve as witnesses reside in PNG, “many ... would not travel to Port Moresby for fear of their lives.”

222

For this reason, plaintiffs contend, it would not be more convenient for the class to litigate the action in that forum. By way of example, plaintiff Poposan states: “I fear grave harm would result to my family, my village, and me if this case were brought in [PNG].... I do not feel that I would be safe if I had to go to PNG to prosecute this ease.”

223

Plaintiff Miriori reports: “I do not feel I would be safe if I had to go to PNG to prosecute this case along with many of those in my village.”

224

Many other plaintiffs describe similar feelings of fear for their own and their family members’ life and safety.

Citing

Shields v. Mi Ryung Construction Co.,

508 F.Supp. 891 (S.D.N.Y.1981), defendants urge the court to disregard these declarations on the basis that they do not constitute “the necessary proof of an actual threat to [plaintiffs’] safety.”

225

In

Shields ,

plaintiff opposed a motion to dismiss on

forum non conveniens

grounds in part because “his personal safety would be endangered if he pursued litigation in Saudi Arabia involving a dispute with Saudi Arabians, especially since his claims

*1174

[concerned] allegations of wrongdoing on the part of a member of the royal family.”

Id.

at 895 . The court rejected this assertion as “entirely unsubstantiated speculation.”

Id.

at 896 .

The present case is distinguishable from

Shields .

Plaintiffs and other Bougainville-ans have been engaged in a civil war with the PNG government for the past ten years. Plaintiffs have adduced detailed declarations as to why they believe they would be in danger if they were forced to travel to Port Moresby. Thomas Tapuri and Francis Bom, for instance, state that they fear traveling to Port Moresby because they are close to Francis Ona, the leader of the Bougainville Republican Army, on whose head the PNG government has placed a bounty.

226

Given that PNG was plaintiffs’ wartime adversary for more than a decade, and that defendants were allegedly aligned with PNG in prosecuting the war, the court finds that the relevant “private interests” favor retention of jurisdiction in this forum. See

Jane Doe I v. Karadzic,

866 F.Supp. 734, 735 (S.D.N.Y.1994) (“the courts of the former Yugoslavia, either in Serbia or war-torn Bosnia, are not now available to entertain plaintiffs’ claims”), rev’d. on other grounds, 70 F.3d 232 (2d Cir.1995);

Rasoulzadeh v. Associated Press,

574 F.Supp. 854, 860 (S.D.N.Y.1983) (“In the case at bar, I have no confidence whatsoever in the plaintiffs’ ability to obtain justice at the hands of the courts administered by Iranian mullahs. On the contrary, I consider that if the plaintiffs returned to Iran to prosecute this claim, they would probably be shot. There is, in these circumstances, no substance to AP’s motion based upon

forum non

conveniens”);

Cabiri, supra,

921 F.Supp. at 1199 (“[PJlaintiff is highly unlikely to obtain justice in the Ghanaian courts, and ... to force plaintiff to bring this action in Ghana would unnecessarily put him in harm’s way, or, also unacceptable, would mean an end to the action altogether. Accordingly, defendant’s motion to dismiss on the ground of

forum non conveniens

is denied”).

Additionally, as discussed above, it is unclear whether plaintiffs will be able to identify counsel who will be willing to represent them on a contingency fee basis in PNG. Moreover, it appears that they will not be able to compel the production of critical witnesses and documents. Taken together with the fact that plaintiffs will be able to attach Rio Tinto’s substantial American assets if a judgment is obtained, private interests factors weigh in favor of denying defendants’ motion to dismiss on

forum non conveniens

grounds.

ii. Public Interest Factors

As respects public interests, defendants contend that

“[t]he same strong sovereign interests that support dismissal on grounds of comity and act of state also compel the conclusion that Papua New Guinea is the appropriate forum for this dispute. Its residents compose the putative class of plaintiffs. Its sovereign choices regarding economic development of natural resources, and actions necessary to maintain territorial integrity and prevent secession of Bougainville Island, are at the center of the dispute.”

227

It is clear that two of the four public interest factors — local interest in the controversy and avoidance of imposing jury duty on residents of a jurisdiction having little relationship to the controversy— weigh in favor of dismissing this action so that it may proceed in PNG. As for the remaining two — court congestion and ap~

*1175

plication of foreign law — the issue is closer.

There is evidence in the record that PNG’s courts are congested, and that it has taken them several years to resolve complex cases similar to this one.

228

While defendants have submitted declarations stating that the delay was occasioned by plaintiffs’ delay,

229

they have not proffered evidence that PNG’s court system is any less congested than that in this country. Moreover, while it is true that the court will have to interpret and apply PNG law as respects some of plaintiffs’ claims, many of the causes of action are brought under the ATCA, and require that the court interpret international, not PNG, law. On balance, therefore, the court concludes that the public interests at issue do not tip sharply in favor of the alternate forum,

iii. Conclusion

Because the court finds that the private interests favor retaining jurisdiction, and the public interests are neutral, it denies defendants’ motion to dismiss the action in favor of a PNG forum. The court believes such a result is particularly appropriate given that the case is brought under the ATCA and alleges violations of international law. See

Wiwa, supra,

226 F.3d at 108 (holding that “the policy expressed in the TVPA favoring adjudication of claims in violation of international prohibitions on torture” weighed against dismissing the action on

forum on conveniens

grounds).

3. Australia

Alternatively, defendants contend that the court should dismiss the action in favor of an Australian forum. As noted earlier, to obtain dismissal on

forum non conve-niens

grounds, defendants must demonstrate that they are amenable to process in the alternative forum, and that the subject matter of the lawsuit is cognizable there. See

Piper, supra,

454 U.S. at 254, n. 22 , 102 S.Ct. 252 ;

Aguinda II, supra,

142 F.Supp.2d at 538. While defendant Rio Tinto Limited is an Australian corporation, and thus presumably amenable to process in that country, defendant Rio Tinto pie “is a company incorporated under the laws of England and Wales with its registered office at 6 St. James’s Square, London.”

230

Given its citizenship, it is unclear whether Rio Tinto pic can be served with process in Australia. “In order to grant a motion to dismiss for

forum non conveniens,

a court must satisfy itself[,

inter alia,]

that the litigation may be conducted elsewhere

against all defendants.” Jota, supra,

157 F.3d at 159 . See also

PT United Can Co. v. Crown Cork & Seal Co.,

138 F.3d 65, 73 (2d Cir.1998) (same);

Ikospentakis v. Thalassic Steamship Agency,

915 F.2d 176, 179 (5th Cir.1990) (“A threshold inquiry in a motion that urges

forum non conveniens

dismissal is whether an adequate alternative forum exists as to all defendants”);

McMurtrie v. Iolab Corp.,

Civ. A. Nos. 94-3683 to 94-3688, 1995 WL 133338 , *1 (E.D.La. Mar.24, 1995) (“IOLAB Corporation contends that an adequate alternative forum exists in Australia based on the plaintiffs’ citizenship and its willingness to stipulate to Australian jurisdiction. However, dismissal predicated on

forum non conveniens

requires that all defendants consent or be subject to the alternative forum’s jurisdiction. While the Court has already ruled that defendants Dr. Azar and his insurers were improperly joined, IOLAB Corporation’s motion fails to ad

*1176

dress whether Johnson

&

Johnson, Inc. is subject to Australian court jurisdiction. Nor has Johnson

&

Johnson, Inc. consented to the jurisdiction of the Australian courts. IOLAB has thus failed to overcome the threshold requirement of demonstrating the existence of an alternative, available forum”).

Here, defendants have proffered no evidence demonstrating that Rio Tinto pic would be amenable to process in Australia. While defendants explicitly state that they would consent to jurisdiction in PNG,

231

they make no similar statement regarding Australia. .Indeed, defendants state that “Papua New Guinea is ... by far the most appropriate forum in terms of comity as well as convenience, and defendants do not waive their right to raise their comity, act of state, and

forum non conveniens

defenses in either the U.K. or Australia.”

232

Nonetheless, defendants did indicate in their proposed order that they would consent in writing to personal jurisdiction in Australia, and defense counsel reaffirmed this position at the July 9, 2001 hearing. Consequently, the court concludes that defendants have met their burden of showing that all defendants are amenable to process in Australia.

Turning to the second prong of the “adequate forum” test, defendants must demonstrate that plaintiffs’ claims are cognizable in Australia, that Australia provides appropriate procedural safeguards, and that plaintiffs may obtain appropriate redress in that country. To this end, defendants assert that “[a] number of courts already have determined that Australia is an adequate forum.”

233

While it may be true that courts have held that Australia is an adequate alternate forum, there is no evidence that the suits in which such a

This text is long and has been trimmed here. Open the source document for the complete record.