Sarei v. Rio Tinto PLC.

AMENDED ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

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