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Full Opinion
This consolidated appeal is from the judgments of the United States District Court for the Southern District of New York (Pauley, /.) dismissing two complaints for lack of subject matter jurisdiction under the Alien Tort Statute, 28 U.S.C. § 1350 (âATSâ), and in the alternative, on the ground of forum non conveniens. Plaintiffs-Appellants Rabi Abdullah! and other Nigerian children and their guardians sued Defendant-Appellee Pfizer, Inc. under the ATS (âthe Abdullahi actionâ). They alleged that Pfizer violated a customary international law norm prohibiting involuntary medical experimentation on humans when it tested an experimental antibiotic on children in Nigeria, including themselves, without their consent or knowledge. Plaintiffs-Appellants Ajudu Ismaila Adamu and others, also children and their guardians who were part of Pfizerâs Nigerian drug experiment, brought a similar action against Pfizer, alleging violations of the ATS, the Connecticut Unfair Trade Practices Act (âCUTPAâ), and the Connecticut Products Liability Act (âCPLAâ) (âthe Adamu actionâ). Pfizer moved to dismiss both actions for lack of subject matter jurisdiction
As explained below, we conclude: (1) that the district court incorrectly determined that the prohibition in customary international law against nonconsensual human medical experimentation cannot be enforced through the ATS; (2) that changed circumstances in Nigeria since the filing of this appeal require re-examination of the appropriate forum, albeit on the basis of a legal analysis different from that employed by the district court; and (3) that the district court incorrectly applied Connecticutâs choice of law rules in the Adamu action. Consequently, we reverse and remand the cases to the district court for further proceedings.
BACKGROUND
A. Pfizerâs Trovan Test in Nigeria
On review of a district courtâs grant of a motion to dismiss, we assume as true the facts alleged in the complaints, construing them in the light most favorable to the appellants. See Vietnam Assân for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir.2008). The central events at issue in these cases took place in 1996, during an epidemic of bacterial meningitis in northern Nigeria.
Appellants claim that Pfizer, working in partnership with the Nigerian government, failed to secure the informed consent of either the children or their guardians and specifically failed to disclose or explain the experimental nature of the study or the serious risks involved. Although the treatment protocol required the researchers to offer or read the subjects documents requesting and facilitating their informed consent, this was allegedly not done in
The appellants allege that, in an effort to rapidly secure FDA approval, Pfizer hastily assembled its test protocol at its research headquarters in Groton, Connecticut, and requested and received permission to proceed from the Nigerian government in March 1996. At the time, Pfizer also claimed to have secured approval from an IDH ethics committee. Appellants allege, however, that the March 1996 approval letter was backdated by Nigerian officials working at the government hospital well after the experiments had taken place and that at the time the letter was purportedly written, the IDH had no ethics committee.
In 1998, the FDA approved Trovan for use on adult patients only. After reports of liver failure in patients who took Trovan, its use in America was eventually restricted to adult emergency care. In 1999, the European Union banned its use.
B. The Proceedings Below
In August 2001, the Abdullahi plaintiffs sued Pfizer under the ATS, alleging that the experiments violated international law. In September 2002, the district court granted Pfizerâs motion to dismiss the Abdullahi claims on the ground oĂ forum non conveniens, conditioned on Pfizerâs consent to litigation in Nigeria. Abdullahi v. Pfizer, Inc., No. 01 Civ. 8118(WHP), 2002 WL 31082956, at *12 (S.D.N.Y. Sept. 17, 2002) (âAbdullahi I â). It found that Nigeria was an adequate alternative forum despite plaintiffsâ contentions about corruption in the Nigerian court system. Id. at *8-10. The district court denied Pfizerâs motion to dismiss under Rule 12(b)(6), Fed.R.Civ.P., concluding that the plaintiffs adequately alleged that Pfizerâs collusion with the Nigerian government made it a state actor. Id. at *5-6.
Meanwhile, another group of children and guardians involved in the Trovan experiment sued in the Federal High Court in Kano, alleging claims under Nigerian law. That case, Zango v. Pfizer International, Inc., [2001] Suit No. FHC/
In November 2002, following the dismissal of the Zango lawsuit, a number of the Zango plaintiffs filed the Adamu action. They alleged that in planning the Trovan experiment in Connecticut and in conducting the tests in Nigeria without informed,consent, Pfizer violated the CUT-PA, the CPLA, and the ATS. Eventually, the Adamu action was transferred to the Southern District of New York and consolidated with the Abdullahi action. Pfizer then moved to dismiss both cases for failure to state a claim under the ATS and on the basis of forum non conveniens. It also moved to dismiss in Adamu on the ground that Connecticut choice of law principles require the application of Nigerian law, which bars suit under CUTPA and the CPLA.
The district court granted the motions. See Abdullahi III, 2005 WL 1870811; Adamu v. Pfizer, Inc., 399 F.Supp.2d 495 (S.D.N.Y.2005). In Abdullahi III, Judge Pauley held that while â[pjlaintiffs correctly state that non-consensual medical experimentation violates the law of nations and, therefore, the laws of the United States,â they failed to identify a source of international law that âprovide[s] a proper predicate for jurisdiction under the ATS.â 2005 WL 1870811, at *9, 14. Noting that âa decision to create a private right of action is one better left to legislative judgment in the great majority of cases,â he concluded that â[a] cause of action for Pfizerâs failure to get any consent, informed or otherwise, before performing medical experiments on the subject children would expand customary international law far beyond that contemplated by the ATS.â Id. at *13-14 (internal quotation marks omitted).
With regard to the forum non conveniens analysis, the district court declined to accept plaintiffsâ submissions concerning Pfizerâs alleged bribery of Nigerian officials on the ground that they were not based on personal knowledge. Id. at *16-17. Finding that the plaintiffs had failed to submit specific evidence that the Nigerian judiciary would be biased against its own citizens in an action against Pfizer, the district court alternatively held that Nigeria was an adequate alternate forum. Id. at *16,18.
Several months later, the district court also granted Pfizerâs motion to dismiss the Adamu case. Adamu, 399 F.Supp.2d 495. It relied on its Abdullahi III decision to hold that the plaintiffs could not establish jurisdiction under the ATS. Id. at 501. The district court also incorporated the forum non conveniens analysis from Abdullahi III to find that Nigeria is an adequate forum. Id. at 504. Applying the public and private interest factors set forth in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), superseded by statute on other grounds as
The Abdullahi and Adamu plaintiffs appealed. Since then, a tectonic change has altered the relevant political landscape. In May 2007, the state of Kano brought criminal charges and civil claims against Pfizer, seeking over $2 billion in damages and restitution.
DISCUSSION
The district court dismissed both actions based on its determination that it lacked subject matter jurisdiction because plaintiffs failed to state claims under the ATS. We review dismissal on this ground de novo. Rweyemamu v. Cote, 520 F.3d 198, 201 (2d Cir.2008). âTo survive dismissal, the plaintiff[s] must provide the grounds upon which [their] claim rests through factual allegations sufficient âto raise a right to relief above the speculative level.â â ATSI Commcâns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 5. Ct. 1955, 1965, 167 L.Ed.2d 929 (2007)).
I. The Alien Tort Statute
The Alien Tort Statute, 28 U.S.C. § 1350, provides that â[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.â Included in the Judiciary Act of 1789, the statute provided jurisdiction in just two cases during the first 191 years after its enactment. See Taveras v. Taveraz, 477 F.3d 767, 771 (6th Cir.2007). In the last thirty years, however, the ATS has functioned slightly more robustly, conferring jurisdiction over a limited category of claims.
We first extensively examined the ATS in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.1980), where we held that conduct violating the law of nations is actionable under the ATS âonly 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.â Id. at 888. Following
In 2004, the Supreme Court comprehensively addressed the ATS for the first time in Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). Justice Souter, writing for the majority, clarified that the ATS was enacted to create jurisdiction over âa relatively modest set of actions alleging violations of the law of nationsâ and with âthe understanding that the common law would provide a cause of action.â Id. at 720, 723. The Supreme Court confirmed that federal courts retain a limited power to âadapt[] the law of nations to private rightsâ by recognizing âa narrow class of international normsâ to be judicially enforceable through our residual common law discretion to create causes of action. Id. at 728-29. It cautioned, however, that courts must exercise this power with restraint and âthe understanding that the door [to actionable violations] is still ajar subject to vigilant doorkeeping,â permitting only those claims that ârest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms [the Supreme Court has] recognized.â Id. at 725, 729. These 18th-centu-ry paradigms consist of offenses against ambassadors, violations of the right to safe passage, and individual actions arising out of piracy. Id. at 724. The common theme among these offenses is that they contravened the law of nations, admitted of a judicial remedy, and simultaneously threatened serious consequences in international affairs. Id. at 715. Lower courts are required to gauge claims brought under the ATS against the current state of international law, but are permitted to recognize under federal common law only those private claims for violations of customary international law norms that reflect the same degree of âdefinite content and acceptance among civilized nationsâ as those reflected in the 18th-century paradigms. Id. at 732-33. The Supreme Court in Sosa also counseled that âthe determination whether a norm is sufficiently definite to support a cause of action should (and, indeed, inevitably must) involve an element of judgment about the practical consequences of making that
In this way Sosa set a âhigh bar to new private causes of actionâ alleging violations of customary international law. Id. at 727. A federal court can recognize one only if a plaintiff identifies the violation of a norm of customary international law that, as defined by the sources of such law that United States courts âhave long, albeit cautiously, recognized,â id. at 733-34 (referencing The Paquete Habana, 175 U.S. 677, 700, 20 S.Ct. 290, 44 L.Ed. 320 (1900)), is sufficiently specific, universal, and obligatory to meet the standards established by Sosa. See Sosa, 542 U.S. at 732, 124 S.Ct. 2739 (citing with approval Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 781 (D.C.Cir.1984) (Edwards, J., concurring), and In re Estate of Marcos, Human Rights Litig., 25 F.3d 1467, 1475 (9th Cir.1994)). Applying these principles, the Supreme Court held that the plaintiff, a Mexican national who sued a fellow Mexican national under the ATS for allegedly aiding in his illegal abduction by agents of the U.S. Drug Enforcement Agency, had failed to allege the violation of a customary international law norm with the required precision. Sosa, 542 U.S. at 738, 124 S.Ct. 2739. The Supreme Court found that the practical consequences of recognizing a general and broad customary international law prohibition of arbitrary detention in a case involving âa single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignmentâ would be âbreathtakingâ and inappropriate. Id. at 736, 738, 124 S.Ct. 2739.
Since Sosa, this Court has reviewed three judgments dismissing claims under the ATS. In Khulumani v. Barclay National Bank, Ltd., 504 F.3d 254 (2d Cir.2007) (per curiam), we held that the ATS conferred jurisdiction over multinational corporations that purportedly collaborated with the government of South Africa in maintaining apartheid because they aided and abetted violations of customary international law. Id. at 260. In Vietnam Assân for Victims of Agent Orange v. Dow Chemical Co., 517 F.3d 104 (2d Cir.2008), we concluded that the ATS did not support a claim that the defendants violated international law by manufacturing and supplying Agent Orange and other herbicides used by the United States military during the Vietnam War. Id. at 123. We reasoned that the sources of law on which the appellants relied did not define a norm prohibiting the wartime use of Agent Orange that was both universal and sufficiently specific to satisfy the requirements of Sosa. Id. at 119-23. Similarly, in Mora v. People of the State of New York, 524 F.3d 183 (2d Cir.2008), we held that the norm at issue â one that prohibits the detention of a foreign national without informing him of the requirement of consular notification and access under Article 36(1)(b)(3) of the Vienna Convention on Consular Relations â was insufficiently universal to support a claim under the ATS. Id. at 208-09.
Turning now to this appeal, and remaining mindful of our obligation to proceed cautiously and self-consciously in this area, we determine whether the norm alleged (1) is a norm of international character that States universally abide by, or accede to, out of a sense of legal obligation; (2) is defined with a specificity comparable to the 18th-century paradigms discussed in Sosa; and (3) is of mutual concern to States.
A The Prohibition of Nonconsensual Medical Experimentation on Humans
Appellantsâ ATS claims are premised on the existence of a norm of custom
(a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
(b) international custom, as evidence of a general practice accepted as law;
(c) the general principles of law recognized by civilized nations;
(d) ... judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
Statute of the International Court of Justice, art. 38(1), June 26,1945, 59 Stat. 1055, 1060, T.S. No. 993 [hereinafter ICJ Statute].
The appellants ground their claims in four sources of international law that categorically forbid medical experimentation on non-consenting human subjects: (1) the Nuremberg Code, which states as its first principle that â[t]he voluntary consent of the human subject is absolutely essentialâ; (2) the World Medical Associationâs Declaration of Helsinki, which sets forth ethical principles to guide physicians world-wide and provides that human subjects should be volunteers and grant their informed consent to participate in research; (3) the guidelines authored by the Council for International Organizations of Medical Services (âCIOMSâ), which require âthe voluntary informed consent of [a] prospective subjectâ; and (4) Article 7 of the International Covenant on Civil and Political Rights (âICCPRâ), which provides that âno one shall be subjected without his free consent to medical or scientific experimentation.â
The district court found that ânon-consensual medical experimentation violates the law of nations and, therefore, the laws of the United Statesâ and cited the Nuremberg Code for support. Abdullahi III, 2005 WL 1870811, at *9. It then noted that â[w]hile federal courts have the authority to imply the existence of a private right of action for violations of jus cogens norms of international law, federal courts must consider whether there exist special factors counseling hesitation in the absence of affirmative action by Congress.â Id. (internal citations and quotation marks omitted). The district court then separately analyzed the four sources of international law that prohibit nonconsensual medical experimen
The district courtâs approach misconstrued both the nature of customary international law and the scope of the inquiry required by Sosa. It mistakenly assumed that the question of whether a particular customary international law norm is sufficiently specific, universal, and obligatory to permit the recognition of a cause of action under the ATS is resolved essentially by looking at two things: whether each source of law referencing the norm is binding and whether each source expressly authorizes a cause of action to enforce the norm. But Sosa, as we have seen, requires a more fulsome and nuanced inquiry. Courts are obligated to examine how the specificity of the norm compares with 18th-century paradigms, whether the norm is accepted in the world community, and whether States universally abide by the norm out of a sense of mutual concern. By eschewing this inquiry, the district court did not engage the fact that norms of customary international law are âdiscerned from myriad decisions made in numerous and varied international and domestic arenasâ and â[do] not stem from any single, definitive, readily-identifiable source.â Flores, 414 F.3d at 247-48.
The district court also inappropriately narrowed its inquiry in two respects. First, it focused its consideration on whether the norm identified by the plaintiffs is set forth in conventions to which the United States is a party, and if so, whether these treaties are self-executing or executed by federal legislation. While adoption of a self-executing treaty or the execution of a treaty that is not self-executing may provide the best evidence of a particular countryâs custom or practice of recognizing a norm, see Flores, 414 F.3d at 257, the existence of a norm of customary international law is one determined, in part, by reference to the custom or practices of many States, and the broad acceptance of that norm by the international community. Agreements that are not self-executing or that have not been executed by federal legislation, including the ICCPR, are appropriately considered evidence of the current state of customary international law. See Khulumani, 504 F.3d at 284 (Katzmann, J., concurring) (noting that â[w]hether a treaty that embodies [a norm of customary international law] is self-executing is relevant to, but is not determinative of, [the] questionâ of whether the norm permits ATS jurisdiction). A formal treaty, moreover, is not the lone primary source of customary international law. The ICJ Statute permits, and Sosa encourages, among other things, that courts consider âinternational custom, as evidence of a general practice accepted
Second, the district courtâs consideration of whether each source of law creates binding legal norms failed to credit the fact that even declarations of international norms that are not in and of themselves binding may, with time and in conjunction with state practice, provide evidence that a norm has developed the specificity, universality, and obligatory nature required for ATS jurisdiction. See Filartiga, 630 F.2d at 883 (â[A non-binding] Declaration creates an expectation of adherence, and insofar as the expectation is gradually justified by State practice, a declaration may by custom become recognized as laying down rules binding upon the States.â) (internal quotation marks omitted). The district court should have considered a greater range of evidence and weighed differently the probative value of the sources on which the appellants relied.
In sum, it was inappropriate for the district court to forego a more extensive examination of whether treaties, international agreements, or State practice have ripened the prohibition of nonconsensual medical experimentation on human subjects into a customary international law norm that is sufficiently (i) universal and obligatory, (ii) specific and definable, and (iii) of mutual concern, to permit courts to infer a cause of action under the ATS. See Sosa, 542 U.S. at 732-35, 124 S.Ct. 2739. We now proceed with such an examination.
i. Universality
The appellants must allege the violation of a norm of customary international law to which States universally subscribe. See Sosa, 542 U.S. at 732, 124 S.Ct. 2739; Vietnam Assân for Victims of Agent Orange, 517 F.3d at 117. The prohibition on nonconsensual medical experimentation on human beings meets this standard because, among other reasons, it is specific, focused and accepted by nations around the world without significant exception.
The evolution of the prohibition into a norm of customary international law began with the war crimes trials at Nuremberg. The United States, the Soviet Union, the United Kingdom and France âacting in the interest of all the United Nations,â established the International Military Tribunal (âIMTâ) through entry into the London Agreement of August 8, 1945. M. Cheriff Bassiouni et al., An Appraisal of Human Experimentation in International Law and Practice: The Need for International Regulation of Human Experimentation, 72 J.Crim. L. & Criminology 1597, 1640 & n. 220 (1981) (internal quotation marks omitted). Annexed to the London Agreement was the London Charter, which served as the IMTâs Constitution. See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers, with annexed Charter of the International Military Tribunal art. 2, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279. According to the Charter, the IMT had the âpower to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed,â among other offenses, war crimes and crimes against humanity. Id. at art. 6.
The IMT tried 22 âmajorâ Nazi war criminals leaving âlower-levelâ war criminals, including â[l]eading physicians ... and leading German industrialists,â to be tried in subsequent trials by U.S. military tribunals acting âunder the aegis of the