Full opinion text
MEMORANDUM OPINION AND ORDER HAIGHT, Senior District Judge. The eight plaintiffs in this ease, who are residents of Peru, claim that they have suffered asthma and lung disease as a result of environmental pollution from defendant Southern Peru Copper Corporation’s mining and refinery operations in and around Ilo, Peru. Southern Peru Copper Corporation (“Southern Peru” or “SPCC”), a Delaware corporation with its principal place of business in Peru, is owned in majority part by a company headquartered in Arizona, which in turn is wholly owned by a Mexican corporation. Plaintiffs contend that Southern Peru has violated international law and that this Court therefore has jurisdiction to adjudicate their claims under the Alien Tort Claims Act, 28 U.S.C. § 1350 (“ATCA”), and under the federal question jurisdiction statute, 28 U.S.C. § 1331. Defendant moves to dismiss the complaint under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim under international law and consequently a lack of federal jurisdiction; in the alternative, defendant moves to dismiss the action on the grounds of forum non conveniens and comity among nations. 1. The Alien Tort Claims Act and International Law A. General Principles The ATCA states: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, - committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350. The ATCA was originally enacted as part of the Judiciary Act of 1789 and was rarely invoked for nearly two hundred years. “As the result of increasing international concern with human rights issues, however, litigants have recently begun to seek redress more frequently under the ATCA.” Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 104 (2d Cir.2000). The Second Circuit’s decision in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.1980), marked the beginning of this recent increase in litigation brought under the ATCA. In that case, the court held that contemporary international law does not just govern the relations among states and the relations between a state and citizens of another state, but also governs certain acts, such as torture, committed by a state against its own citizens. Id. at 884-85. Then in Kadic v. Karadzic, 70 F.3d 232 (2d Cir.1995), the Second Circuit went a step further to hold that, under modern international law, “certain forms of conduct violate the law of nations whether undertaken by those acting under the auspices of a state or only as private individuals.” Id. at 239. As is evident from the holdings of Filartiga and Kadic, “courts must interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today.” Filartiga, 630 F.2d at 881; accord Kadic, 70 F.3d at 238, 241. The ATCA provides for federal court jurisdiction where a plaintiffs claim involves a violation of a treaty of the United States or the “law of nations,” which consists of rules that “command the ‘general assent of civilized nations,’ ” Filartiga, 630 F.2d at 881. The requirement that a rule achieve general assent before it becomes binding on all nations as international law is “stringent”; “[w]ere this not so, the courts of one nation might feel free to impose idiosyncratic legal rules upon others, in the name of applying international law.” Id.; see also Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428-30, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964) (expressing reluctance to adjudicate issue of “a state’s power to expropriate the property of aliens” under international law, given divergence of opinion between capitalist and communist nations). Thus, a plaintiff must demonstrate that a defendant’s alleged conduct violated “well-established, universally recognized norms of international law” in order to establish federal subject matter jurisdiction under the ATCA. Filartiga, 630 F.2d at 888; accord Kadic, 70 F.3d at 239. Courts seek to determine whether a rule is well-established and universally recognized “ ‘by consulting the works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law.’ ” Filartiga, 630 F.2d at 880, quoting United States v. Smith, 18 U.S. (5 Wheat.) 153, 160-61, 5 L.Ed. 57 (1820); accord Kadic, 70 F.3d at 238. B. Plaintiffs’ Claims Under International Law Plaintiffs claim that Southern Peru’s acts of egregious environmental pollution violated their rights to life, health, and sustainable development, which plaintiffs contend are protected under international law. Plaintiffs rely on the affidavits of Professor Jordan Paust from the Law Center of the University of Houston and Professor Gunther Handl from Tulane University Law School, who cite numerous international documents as evidence of the rights asserted by plaintiffs under international law. Defendants dispute that any binding rule of international law applies to environmental pollution within a nation’s borders. Furthermore, defendants argue that such a rule of international law, were it to exist, would apply only to the conduct of nations, not the conduct of private corporations such as Southern Peru. Defendants rely on the affidavits of Professor John Yoo from the University of California at Berkeley School of Law. Plaintiffs contend that no relevant case-law in the United States bears on the viability of their particular claims under international law. It may be true that courts in this country have not previously considered the existence and scope under international law of the “right to life,” “right to health,” and “right to sustainable development,” expressed in those particular terms, but courts in a handful of cases have considered claims similar to those raised in the present case. I turn first to those cases to see what guidance they may provide. The case of Aguinda v. Texaco, Inc., which was brought in this district, involves claims under international law for personal injuries and environmental harms resulting from oil exploration conducted in Ecuador. The defendants made a motion to dismiss, which generated multiple opinions by the district court and one opinion by the Second Circuit; the case is currently pending on appeal again before the Second Circuit No. 93 Civ. 7527 (VLB), 1994 WL 142006 (S.D.N.Y. Apr.11, 1994) (Broderick, J.); 945 F.Supp. 625 (S.D.N.Y.1996) (Rakoff, J.); 175 F.R.D. 50 (S.D.N.Y.1997) (Rakoff, J.); vacated sub nom. Jota v. Texaco, Inc., 157 F.3d 153 (2d Cir.1998); 142 F.Supp.2d 534 (S.D.N.Y.2001) (Rakoff, J.); appeal argued, 303 F.3d 470 (2d Cir.2002). In their motion to dismiss, the defendants in Aguinda challenged whether the plaintiffs had stated a claim under the ATCA and international law. Judge Bro-derick, in the first opinion of the district court, gave some initial consideration to the viability of the plaintiffs’ claims under international law but then reserved decision on the issue and authorized limited discovery. 1994 WL 142006, at *6-7. Judge Broderick found the Rio Declaration on Environment and Development, U.N. Doc. A/CONF. 151/5/Rev. 1, 31 L.M. 874 (June 13, 1992) (“Rio Declaration”), to be especially pertinent and opined that it was possible that “misuse of hazardous waste of sufficient magnitude” might violate international law. Id. at 7. On the other hand, he also stated that caution was necessary “in order to assure that decision making by other countries is not interfered with by adjudication in the United States under necessarily highly general concepts.” Id. Judge Broderick concluded that because the plaintiffs’ claims involved “a massive industrial undertaking extending over a substantial period of time and with major consequences,” and because the plaintiffs claimed that “steps in the United States were an integral part of the events at issue,” discovery was warranted on the subject of the “events, if any, initiated or assisted in the United States which might violate international law.” Id. The case was reassigned to Judge Ra-koff after Judge Broderick’s death. After discovery, Judge Rakoff granted the motion to dismiss on the grounds of forum non conveniens, international comity, and failure to join indispensable parties, not reaching the question of whether the plaintiffs had stated a claim under international law. 945 F.Supp. at 627-28. On the question of forum non conveniens, Judge Rakoff largely adopted the findings and rationale of the court in Sequihua v. Texaco, Inc., 847 F.Supp. 61 (S.D.Tex.1994), which dismissed on forum non conveniens grounds comparable claims asserted by residents of the same region in Ecuador against Texaco for contamination of the air, ground, and water in Ecuador. 945 F.Supp. at 627. The Second Circuit vacated the dismissal and remanded for reconsideration. 157 F.3d at 155. The court of appeals directed the district court to obtain Texaco’s consent to jurisdiction in Ecuador and to reweigh independently the forum non conveniens factors rather than simply relying on Sequihua. Id. at 159. The court of appeals noted that Sequihua did not involve claims under the ATCA for violations of international law. Id. In a footnote, the court of appeals stated: 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. Id. at 159 n. 6. On remand, Judge Rakoff dismissed plaintiffs claims, relying only on the ground of forum non conveniens. 142 F.Supp.2d at 554. In weighing the public interest factors relevant to forum non con-veniens, he commented: “[T]he specific claim plaintiffs purport to bring under the ATCA — that the Consortium’s oil extraction activities violated evolving environmental norms of customary international law — lacks any meaningful precedential support and appears extremely unlikely to survive a motion to dismiss.” Id. at 552 (citations omitted). Another appeal has been argued before the Second Circuit and is awaiting decision. No. 01-7756. Amlon Metals, Inc. v. FMC Corp., 775 F.Supp. 668 (S.D.N.Y.1991) (Conner, J.) involved a shipment of copper residue from New York to the United Kingdom. The shipment having been condemned by British authorities, the plaintiff shipper sued the Maryland supplier, claiming inter alia that a cause of action lay under the ATCA because the extremely high toxicity of the shipment could “present imminent and substantial danger to human health and to the environment” and therefore was in violation of international law. Id. at 670. The court granted the defendant’s motion to dismiss, finding that the plaintiff had failed to state a violation of international law and therefore that jurisdiction under the ATCA was lacking. Id. at 671. Plaintiffs in that case relied on the Stockholm Principles, United Nations Conference on the Human Environment (adopted June 16, 1972) and the Restatement (Third) of Foreign Relations Law § 602(2) (1987). The court found that the Stockholm Principles “do not set forth any specific proscriptions, but rather refer only in a general sense to the responsibility of nations to insure that activities within their jurisdiction do not cause damage to the environment beyond their borders.” Id. at 671. As for the Restatement, the court said that it did not “constitute a statement of universally recognized principles of international law. At most, as plaintiffs’ own brief suggests, the Restatement iterates the existing U.S. view of the law of nations regarding global environmental protection.” Id. The court’s decision in Amlon was not appealed. The Fifth Circuit also has had occasion to consider claims similar to those made in this case. Defendant repeatedly cites Torres v. Southern Peru Copper Corp., 965 F.Supp. 895 (S.D.Tex.1995); 965 F.Supp. 899 (S.D.Tex.1996); aff'd, 113 F.3d 540 (5th Cir.1997), in which several hundred residents of Peru, not including the present plaintiffs, sued Southern Peru (also the defendant at bar) for personal injuries and property damage resulting from environmental pollution in the area of Ilo, Peru (the same area involved in the case at bar). 965 F.Supp. at 899, 901, 905. The plaintiffs in Torres asserted claims under state law in a Texas state court, and the defendants removed the case to federal district court. Id. at 896-97, 901. The district court found subject matter jurisdiction based on the federal common law of international relations, id. at 898-99, and then granted the defendants’ motion to dismiss on the grounds of forum non conveniens and comity of nations, id. at 902-09. On the issue of comity of nations, the court noted that Peru regulated the challenged conduct, which occurred entirely in Peru, and concluded that exercising jurisdiction would interfere with Peru’s “sovereign right to control its own environment and resources.” Id. at 909. The Fifth Circuit affirmed the district court’s decisions, evaluating in depth the issue of subject matter jurisdiction and summarily approving the district court’s resolution of the issues of forum non conveniens and comity of nations. 113 F.3d at 542-44. In discussing the foreign policy issues that gave rise to federal subject matter jurisdiction, the court noted that the mining industry was critical to the economy oí Peru, the Peruvian government had “participated substantially” in the activities for which Southern Peru was being sued, and the government extensively regulated the mining industry; the court concluded that the case implicated “Peru’s sovereign interests by seeking damages for activities and policies in which the government actively has been engaged.” Id. at 543. Defendant makes much of the fact that the same lawyers who represent the plaintiffs in the present case also represented the plaintiffs in Torres. E.g., Tr. of Oral Arg., Oct. 29, 2001, at 12 (“This is the same lawsuit, the same lawsuit with the same allegations filed four years ago in Texas which was thrown out.”), 24 (“My colleague, Mr. Shirrmeister, lost once. He has dressed up the same allegations and brought them again.”), 68 (“These plaintiffs — this is not a claim preclusion argument, but it goes to the forum non conveniens argument — they had their opportunity.”). Of course, as defendant concedes, preclusion principles do not prevent a lawyer from suing the same defendant more than once on behalf of different plaintiffs. Also, the plaintiffs in Torres raised claims only under state law, whereas the plaintiffs in the present case raise claims only under the ATCA and concomitant principles of international law. The district court in Aguinda, where ATCA claims were asserted, was presented with similar circumstances and relied heavily on the decision of the court in Sequihua in its first decision granting the defendants’ motion to dismiss on forum non conve-niens grounds; the Second Circuit stated that such substantial reliance was inappropriate. 157 F.3d at 159 (“On remand, ... the District Court should independently reweigh the factors relevant to a forum non conveniens dismissal, rather than simply rely on Sequihua”). More recently, the Fifth Circuit dealt directly with the viability of environmental claims under international law in Beanal v. Freeport-McMoran, Inc., 197 F.3d 161 (5th Cir.1999), aff’g 969 F.Supp. 362 (E.D.La.1997). The plaintiff, a citizen of Indonesia, alleged that the defendant, a U.S. corporation, had engaged in mining operations in Indonesia causing harm to the environment and habitat of the Amungme tribe and further alleged that the defendant’s security forces had violated the tribe’s human rights, all in violation of international law. 197 F.3d at 163. The court of appeals analyzed the plaintiffs claims under three categories: individual human rights violations, genocide and cultural genocide, and environmental torts. With regard to the plaintiffs claims of human rights violations, the court of appeals upheld the district court’s determination that the complaint failed to allege definite facts and did not reach the question “whether state-action is required to sustain an action for individual human rights violation under the ATS.” Id. at 166. On this point, the district court had held that “the acts of murder and torture are only actionable by proof of state action,” unless they are “committed as acts of genocide.” 969 F.Supp. at 371 (relying primarily upon the Second Circuit’s opinion in Kadic v. Karadzic). With regard to the plaintiffs claims of genocide and cultural genocide, the court of appeals upheld the district court’s determination that the complaint failed to allege definite facts of genocide and approved the district court’s holding that cultural genocide is not prohibited under customary international law. 197 F.3d at 167-68. The court considered the documents cited by the plaintiff, principally the International Covenant on Civil and Political Rights, the International Covenant on Economic Social and Cultural Rights, and the Universal Declaration on Human Rights, and decided that they proclaim “an amorphous right to ‘enjoy culture,’ or a right to ‘freely pursue’ culture, or a right to cultural development .... [but] nonetheless fail to proscribe or identify conduct that would constitute an act of cultural genocide.” Id. at 168 (footnote citing sources omitted). The court concluded: [I]t would be problematic to apply these vague and declaratory international documents to Beanal’s claim because they are devoid of discernable means to define or identify conduct that constitutes a violation of international law. Furthermore, Beanal has not demonstrated that cultural genocide has achieved universal acceptance as a discrete violation of international law. Thus, it would be imprudent for a United States tribunal to declare an amorphous cause of action under international law that has failed to garner universal acceptance. Id. Finally, the court of appeals upheld the district court’s determination that the plaintiff had failed to allege environmental torts in violation of international law. Id. at 166-67. The plaintiff alleged that the defendant had dumped large quantities of mine tailings in rivers near the plaintiffs home, causing the water to be unsuitable for bathing and drinking, destroying vegetation, contaminating aquatic life, and creating a high risk of floods and landslides. Id. at 166. The plaintiff cited several documents as evidence of international law prohibiting the defendant’s actions, relying principally on a book by Professor Phillipe Sands of New York University School of Law and the Rio Declaration. Id. at 167. The Fifth Circuit held that the plaintiff had not demonstrated the existence of a rule of international law applicable to the alleged actions, explaining: Beanal fails to show that these treaties and agreements enjoy universal acceptance in the international community. The sources of international law cited by Beanal and the amid merely refer to a general sense of environmental responsibility and state abstract rights and liberties devoid of articulable or discernable standards and regulations to identify practices that constitute international environmental abuses or torts.... [Fjederal courts should exercise extreme caution when adjudicating environmental claims under international law to insure that environmental policies of the United States do not displace environmental policies of other governments. Furthermore, the argument to abstain from interfering in a sovereign’s environmental practices carries persuasive force especially when the alleged environmental torts and abuses occur within the sovereign’s borders and do not affect neighboring countries. Id. The court noted that the “express language of the [Rio] declaration appears to cut against Beanal’s claims.” Id. at 167 n. 6. Plaintiffs attempt to distinguish the present case from those discussed above by characterizing their claims as based on human rights law, rather than environmental law, and by pointing to the specific rights they invoke, i.e. the right to life, right to health, and right to sustainable development. But the labels plaintiffs affix to their claims cannot be determinative. Severe environmental pollution necessarily has an impact on human life, and the cases discussed above all involved allegations of environmental pollution that had injured people or that risked injuring people. Furthermore, the international law sources considered in the above cases are relevant to plaintiffs claims in this case. In addition to considering the above cases and the sources cited therein, I also have reviewed the voluminous international documents submitted by plaintiffs. I conclude that plaintiffs have not demonstrated that high levels of environmental pollution, causing harm to human life, health, and sustainable development within a nation’s borders, violate any well-established rules of customary international law. While nations may generally agree that human life, health, and sustainable development are valuable and should be respected, and while there may be growing international concern over the impact of environmental pollution on humanity, plaintiffs have not demonstrated any general consensus among nations that a high level of pollution, causing harm to humans, is universally unacceptable. Plaintiffs rely on several conventions and declarations which have been approved by many nations and which therefore provide strong evidence of the content of customary international law. These documents speak in terms of “rights,” but they do not identify any prohibited conduct that is relevant to this case. For example, as evidence of the right to life, plaintiffs cite Article 3 of the Universal Declaration of Human Rights: “Everyone has the right to life, liberty and the security of person.” G.A. Res. 217A, 3 U.N. GAOR, U.N. Doc. A/810, at 71 (1948). As evidence of the right to health, plaintiffs cite Article 25(1) of the Universal Declaration of Human Rights, “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family and Article 12 of the International Covenant on Economic, Social, and Cultural Rights, “The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health,” 999 U.N.T.S. 3 (1966) (emphasis added). As evidence of the right to sustainable development, plaintiffs cite the World Charter for Nature: “1. Nature shall be respected and its essential processes shall not be impaired.... 11. Activities which might have an impact on nature shall be controlled, and the best available technologies that minimize significant risks to nature or other adverse effects shall be used.... ” G.A. Res. 37/7 (1982) (emphasis added). In Filartiga, the Second Circuit stated that “there is no universal agreement as to the precise extent of the ‘human rights and fundamental freedom’ guaranteed to all by the [United Nations] Charter.” 630 F.2d at 882. In that case, however, the court concluded that “there is at present no dissent from the view that the guaranties include, at a bare minimum, the right to be free from torture.” 630 F.2d at 882. In finding that torture by governmental officials violates international law, the court relied in particular on the Universal Declaration of Human Rights, G.A. Res. 217(III)(A) (Dec. 10, 1948), adopted without dissent by the General Assembly of the United Nations, which states that “no one shall be subjected to torture,” and the Declaration on the Protection of All Persons from Being Subjected to Torture, G.A. Res. 3452, 30 U.N. GAOR Supp. (No. 34) 91, U.N. Doc. A/1034 (1975), also adopted unanimously by the General Assembly, which prohibits any state from permitting official torture and is careful to include a painstaking and precise definition of “torture” (“any act by which severe pain and suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as ... intimidating him or other persons”). 630 F.2d at 882-83; see also Wiwa v. Royal Dutch Petroleum Co., No. 96 Civ. 8386 (KMW), 2002 WL 319887, at *10-13 (S.D.N.Y. Feb.28, 2002) (holding that “beating and shooting a civilian engaged in peaceful protest” violates “the right to life, liberty, and personal security” under well-established international law if the perpetrator is a state actor). The plaintiffs in the present case rely principally on the general human rights principles that the court in Filartiga found insufficiently determinate, standing alone, to establish binding customary international law. Plaintiffs do not supplement those principles with sources demonstrating that there is “no dissent from the view” that certain levels of environmental pollution violate human rights under international law. Plaintiffs rely on some additional sources, which are less probative of the “general assent of civilized nations” than the conventions and declarations cited above, that acknowledge that the quality of the environment implicates human life and health but nevertheless do not identify conduct that is universally prohibited. See, e.g., Report on the Situation of Human Rights in Ecuador, Ch. VIII, Inter-Am. C.H.R., OEA/Ser. L/V/II.96, Doc. 10, rev. 1 (Apr. 24,1997) (“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.”); Case Concerning the Gabcíkovo-Nagymaros Project (Hungary v. Slovakia), 1997 I.C.J. 204 (separate opinion of Vice-President Weeramantry) (“The protection of the environment is ... a sine qua non for numerous human rights such as the right to health and the right to life itself.”). Plaintiffs also rely on some opinions of individual scholars that make a stronger statement of the rights to life, health, and sustainable development in an. environmental context, but these opinions are even less probative of the existence of universal norms, especially considering the vigorous academic debate over the content of international law. If anything, nations generally agree that the appropriate balance between economic development and environmental protection is a matter that may be determined by each nation with respect to the land within its borders. Principle 1 of the Rio Declaration echoes the same general human rights principles cited by plaintiffs: “Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.” Principle 2 then proclaims: States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. Thus, the Rio Declaration acknowledges that exploitation of the environment affects human life, health, and sustainable development; but it simultaneously recognizes the “sovereign right” of nations to control the level of environmental exploitation within their territories. See Beanal, 197 F.3d at 167 n. 6 (“Although Beanal cites the Rio Declaration to support his claims of environmental torts and abuses under international law, nonetheless, the express language of the declaration appears to cut against Beanal’s claims.”). The Restatement (Third) of Foreign Relations Law (1987) supports the. position that environmental pollution, within a nation’s borders, that adversely affects human life or health does not violate any binding rules of international law. Section 601 describes a state’s responsibilities with respect to the environment as follows: (1) A state is obligated to take such measures as may be necessary, to the extent practicable under the circumstances, to ensure that activities within its jurisdiction or control (a) conform to generally accepted international rules and standards for the prevention, reduction, and control of injury to the environment of another state or of areas beyond the limits of national jurisdiction; and (b) are conducted so as not to cause significant injury to the environment of another state or of areas beyond the limits of national jurisdiction .... Section 702 describes state actions that violate the international law of human rights as follows: A state violates international law if, as a matter of state policy, it practices, encourages, or condones (a) genocide, (b) slavery or slave trade, (c) the murder or causing the disappearance of individuals, (d) torture or other cruel, inhuman, or degrading treatment or punishment, (e) prolonged arbitrary detention, (f) systematic racial discrimination, or (g) a consistent pattern of gross violations of internationally recognized human rights. The comment to Section 702 explains that “this section includes as customary law only those human rights whose status as customary law is generally accepted (as of 1987) and whose scope and content are generally agreed.... The list is not necessarily complete, and is not closed: human rights not listed in this section may have achieved the status of customary law, and some rights might achieve that status in the future.” Thus, the Restatement does not foreclose the possibility that additional types of conduct may come to be recognized by the community of nations as violating international law. But plaintiffs have not demonstrated the development of any international consensus with regard to unacceptable levels of environmental pollution that even approaches the universal condemnation of the acts identified in the Restatement. Plaintiffs concede that not every tort that causes injury to human life or health constitutes a violation of the law of nations. Tr. of Oral Arg. at 36. Plaintiffs suggest that, in order to distinguish ordinary torts from torts that violate international law, courts should “make a factual inquiry into whether the allegations rise to the level of egregiousness and intentionality required to state a claim under international law,” taking into account the amount of harm caused and the existence of reasonable alternatives. Id. at 36, 46. Not surprisingly, plaintiffs’ complaint alleges “willful and wanton behavior, depraved indifference, and/or gross negligence” on the part of Southern Peru and states that Southern Peru failed to use emission control devices that were available and inexpensive. Compl. ¶¶ 28, 62, 63, 67, 68, 73, 74. Defendant, for its part, also invokes the “shockingly egregious” standard, prompting plaintiffs to urge that the conduct they allege really is “shockingly egregious”: “The defendants have made a big point of saying that you can’t violate an international right that is cognizable under the Alien Tort Claims Act unless that behavior is, quote, shockingly egregious.... I would submit that the allegations in this complaint are shockingly, shockingly egregious.” Tr. of Oral Arg. at 30. The phrase “shockingly egregious” first appeared in the Second Circuit’s four-paragraph opinion in Zapata v. Quinn, 707 F.2d 691 (2d Cir.1983), which dealt with a claim that the New York State Lottery deprived the plaintiff of property without due process of law: Jurisdiction is lacking under 28 U.S.C. § 1350 (the “alien tort” statute), which applies only to shockingly egregious violations of universally recognized principles of international law, see Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.1980) (torture). In any event Ms. Zapata clearly fails to state, even by the wildest stretch of imagination, a claim upon which relief can be granted. Id. at 692 (emphasis added). That language was then quoted in the Fifth Circuit’s opinion in Beanal: Nevertheless, “[i]t 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 in the meaning of the [ATS].” Filartiga, 630 F.2d at 888. Thus, the ATS “applies only to shockingly egregious violations of universally recognized principles of international law.” See Zapata v. Quinn, 707 F.2d 691, 692 (2d Cir.1983) (per curiam). Beanal fails to show that these treaties and agreements enjoy universal acceptance in the international community. 197 F.3d at 167 (emphasis added). Zapata and Beanal did not establish “shockingly egregious” as an independent standard for determining what constitutes a violation of international law. Rather, both cases affirmed that the appropriate standard is whether a rule is universally accepted as international law. The courts in Zapata and Beanal recognized that because universal acceptance is a prerequisite to a rule becoming binding as customary international law, only rules prohibiting acts that are “shockingly egregious” are likely to attain that status. It is important to bear in mind the Second Circuit’s admonition in Filartiga: “The requirement that a rule command the ‘general assent of civilized nations’ to become binding upon them all is a stringent one. Were this not so, the courts of one nation might feel free to impose idiosyncratic legal rules upon others, in the name of applying international law.” 630 F.2d at 881. Plaintiffs’ suggested approach — a factual assessment to determine whether the defendant’s alleged conduct is “shockingly egregious” — would displace the agreement of nations as the source of customary international law and substitute for it the consciences and sensibilities of individual judges. Life and health, those fundamental blessings of the human state, may be harmed or threatened by a great variety of wrongful conduct. It is not for judges, however humane and sensitive or callous and unfeeling, to determine which specific acts injuring life or health are so “egregious” that they become the subject of international law. The Law of Nations, as that phrase is used in 28 U.S.C. 1350, is declared by the Parliament of Nations, and not by judges, trial or appellate, of a particular nation. Thus it is for the nations of the world to develop customary international law that identifies those horrific acts that should be universally prohibited. See Benjamins v. British European Airways, 572 F.2d 913, 915-916 (2d Cir.1978) (deciding that negligent conduct causing disastrous air crash and death of all 112 passengers, even if “wilful,” is not prohibited by law of nations). Even if certain conduct is universally prohibited, it is not necessarily incorporated into customary international law. The Second Circuit explained in Filartiga: [T]he mere fact that every nation’s municipal law may prohibit theft does not incorporate “the Eighth Commandment, ‘Thou Shalt not steal’ ... (into) the law of nations.” 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. 630 F.2d at 888 (quoting IIT v. Vencap, 519 F.2d 1001, 1015 (2d Cir.1975) (Friendly, J.)). Thus, a brutal murder may be shockingly egregious criminal conduct in the eyes of all the world but remain a matter for domestic law only. The express language of Principle 2 of the Rio Declaration indicates that nations view environmental pollution within a nation’s borders as a matter best left entirely to domestic regulation. Plaintiffs also urge the Court to give content to general human rights principles under international law in the same manner that federal courts interpret general principles of the Bill of Rights, such as “due process of law” and “freedom of speech.” Surreply Brief at 4. In this vein, plaintiffs suggest that Principles 1 and 2 of the Rio Declaration should be read together to impose a reasonableness requirement on nations’ exercise of their “sovereign right to exploit their own resources pursuant to their own environmental and developmental policies,” such that a violation of international law occurs when a nation abuses its discretion. At oral argument, counsel for plaintiffs reasoned: The [Rio] declaration says that it is a matter for each state to determine within reason the bounds that it wants to take. It also states, your Honor, that, even within a country’s borders, no state has the unfettered right to pursue economic development at whatever the cost to human beings.... And so when behavior as egregious as this results in a substantial, long-lived pattern of disease and death, the boundary has been crossed. The state’s discretion has been abused. Tr. of Oral Arg. at 34 (emphasis added). Once again, the approach advocated by plaintiffs diverts attention from universally accepted standards to concepts, such as “reasonableness,” that are easily subject to differing interpretations by the courts of different nations. In the international system, there is no supreme court to reconcile conflicting interpretations and provide authoritative guidance on customary international law. Thus, reliance on broad concepts in ascertaining the content of customary international law would be especially problematic. Plaintiffs’ suggestion that the court read implied limitations on the express language of the Rio Declaration is also inappropriate. The express language of the Rio Declaration was approved by many nations; the implied limitations proposed by plaintiffs have not been universally accepted. While it is not necessary for nations to identify with specificity every factual scenario that violates a particular prohibition under international law, a rule of customary international law must nevertheless be “sufficiently determinate” to make it clear that particular conduct is prohibited. Filartiga, 630 F.2d at 880. For example, nations have universally agreed that torture violates international law, and this prohibition is sufficiently determinate to serve as a basis for suit. See id. at 884 (“The prohibition is clear and unambiguous.... ”). By contrast, the “rights” articulated in the documents submitted by plaintiffs are not sufficiently determinate to show that the nations of the world universally prohibit the sort of conduct that plaintiffs allege in this case. In conclusion, plaintiffs have not demonstrated that high levels of environmental pollution within a nation’s borders, causing harm to human life, health, and development, violate “well-established, universally recognized norms of international law.” Filartiga, 630 F.2d at 888. Since I find no prohibition under international law dealing with environmental conduct within a nation’s borders, I need not decide whether such a prohibition would apply to private actors as well as state actors, nor need I decide whether plaintiffs have alleged sufficient facts to support a finding that Southern Peru was a state actor. Defendant’s motion to dismiss for lack of federal subject matter jurisdiction and failure to state a claim is granted. II. Forum Non Conveniens Having concluded in Part I that the Court lacks subject matter jurisdiction because plaintiffs’ amended complaint does not state a viable claim under ATCA, I need not rule upon defendant’s alternative basis for dismissal, the doctrine of forum non conveniens. Nevertheless, I think it is useful for this Court to address the issue. Plaintiffs will in all likelihood appeal the dismissal of their action. If the Court of Appeals affirms this Court’s dismissal on the ATCA ground, then that ends the case, barring possible Supreme Court review. But if the Court of Appeals reverses the dismissal on the ATCA ground, judicial efficiency may be served by making the Court of Appeals aware at this time of this Court’s views on forum non conveniens, so that the Court of Appeals, if so inclined, can consider that issue as well, thereby disposing of the case on one appeal rather than two. Ordinarily, I suppose, judges should refrain from uttering what may prove to be elaborate dicta; but the present circumstances, to my mind at least, justify the exercise. A. General Principles In Bank of Credit and Commerce International (OVERSEAS) Ltd. v. State Bank of Pakistan, 273 F.3d 241 (2d Cir.2001), the Second Circuit furnished a recent overview of the principles governing forum non conveniens: The first step in a forum non conve-niens analysis is for the court to establish the existence of an adequate alternative forum. An alternative forum is generally adequate if: (1) the defendants are subject to service of process there; and (2) the forum permits litigation of the subject matter of the dispute. It follows that an adequate forum does not exist if a statute of limitations bars the bringing of the case in that forum. After concluding that an adequate alternative forum exists, the court must weigh the public and private interests identified in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), in order to determine which forum will be most convenient and will best serve the ends of justice. The defendant bears the burden of proof on all elements of the motion, and great weight is given to the plaintiffs choice of forum. 273 F.3d at 246 (citations, other than to Gulf Oil Corp. v. Gilbert, and internal quotation marks omitted). Any plaintiff resisting a defendant’s forum non conveniens motion naturally stresses the deference — if not to say the sanctity — to be accorded his choice of forum. The plaintiffs at bar are no exception. And indeed, in DiRienzo v. Philip Services Corp., 232 F.3d 49, 56-57 (2d Cir.2000), the Second Circuit said that to succeed on forum non conveniens a defendant, having first shown the existence of an adequate alternative forum, “must next demonstrate that the ordinarily strong presumption favoring the plaintiffs chosen forum is countered by the private and public interest factors set out in Gilbert, which weigh so heavily in favor of the foreign forum that they overcome the presumption for plaintiffs’ choice of forum.” To support that proposition DiRienzo quoted Gilbert, 330 U.S. at 508, 67 S.Ct. 839: “[U]nless the balance is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be disturbed.” In DiRienzo the Second Circuit rejected the forum non conveniens effort of Canadian defendants, joined with one United States defendant, to dismiss, in favor of the Canadian courts, actions commenced in United States courts by American residents. More recently, in an en banc decision, the Second Circuit considered at greater length the deference to be given a plaintiffs choice of forum. See Iragorri v. United Technologies Corp., 274 F.3d 65 (2d Cir. Dec.4, 2001). The precise question before the en banc Court in Iragorri was “what degree of deference should the district court accord to a United States plaintiffs choice of a United States forum where that forum is different from the one in which the plaintiff resides.” 274 F.3d at 69. That particular question does not arise in the case at bar, since plaintiffs are citizens and residents of Peru. Nonetheless, in Iragorri the Court of Appeals spoke in terms applicable to a broader spectrum of cases. Accordingly it is instructive to quote the Iragorri opinion at some length. The Second Circuit began its analysis with a review of Supreme Court forum non conveniens cases and then said: We regard the Supreme Court’s instructions that (1) a plaintiffs choice of her home forum should be given great deference, while (2) a foreign resident’s choice of a U.S. forum should receive less consideration, as representing consistent applications of a broader principle under which the degree of deference to be given to a plaintiff’s choice of forum moves on a sliding scale depending on several relevant considerations. 274 F.3d at 71 (emphasis added). Foremost among those considerations, in the view of the Iragorri court, is whether a plaintiff chose a particular forum for genuine convenience or for tactical advantage. The Second Circuit addressed the interplay of those two considerations in this extended analysis: The more it appears that a domestic or foreign plaintiffs choice of forum has been dictated by reasons that the law recognizes as valid, the greater the deference that will be given to the plaintiffs forum choice. Stated differently, the greater the plaintiffs or the lawsuit’s bona fide connection to the United States and to the forum of choice and the more it appears that considerations of convenience favor the conduct of the lawsuit in the United States, the more difficult it will be for the defendant to gain dismissal for forum non conve-niens. Thus, factors that argue against forum non conveniens dismissal include the convenience of the plaintiffs residence in relation to the chosen forum, the availability of witnesses or evidence to the forum district, the defendant’s amenability to suit in the forum district, the availability of proper legal assistance, and other reasons relating to convenience or expense. On the other hand, the more it appears that the plaintiffs choice of a U.S. forum was motivated by forum-shopping reasons — such as attempts to win a tactical advantage resulting from local laws that favor the plaintiffs case, the habitual generosity of juries in the United States or in the forum district, the plaintiffs popularity or the defendant’s unpopularity in the region, or the inconvenience and expense to the defendant resulting from litigation in that forum — the less deference the plaintiffs choice commands and, consequently, the easier it becomes for the defendant to succeed on a forum on conveniens motion by showing that convenience would be better served by litigating in another country’s courts. 274 F.3d at 71-72 (footnotes omitted). In its continuing discussion, the Iragorri court made it plain that the degree of deference given to a plaintiffs choice of forum was not decisive of a forum non conveniens motion. “It is only the first level of inquiry,” 274 F.3d at 73, so that “[e]ven after determining whether the plaintiffs choice is entitled to more or less deference, a district court must still conduct the analysis set out in Gilbert, Koster, and Piper [three Supreme Court decisions]. Initially, the court must consider whether an adequate alternative forum exists. If so, it must balance two sets of factors to ascertain whether the case should be adjudicated in the plaintiffs chosen forum or in the alternative forum proposed by the defendant.” Id. The “two sets of factors” to which the Second Circuit referred in Iragorri are known as the “private interest factors” and the “public interest factors,” following the nomenclature employed by the Supreme Court in the seminal case of Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). Private interest factors focus upon the convenience of the litigants, and include “the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.” Id. at 508, 67 S.Ct. 839. As for public interest factors, the Court said in Gilbert at 508-09, 67 S.Ct. 839: Factors of public interest also have place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself. While the references in Gilbert to “a diversity case” and “the state law” governing the case suggest a choice between the courts of two states of the United States, it is well settled that the forum non conveniens factors articulated in Gilbert apply where the proposed alternative forum is in a foreign country. See, e.g., Alcoa Steamship Co. v. M/V Nordic Regent, 654 F.2d 147 (2d Cir.1980) (en banc) (applying Gilbert factors in admiralty action; complaint filed in Southern District of New York dismissed on forum non conveniens grounds in favor of courts of Trinidad). B. The Case at Bar 1. Whether an ATCA Claim Precludes Application of Forum Non Conve-niens At the outset, I must take account of plaintiffs’ threshold argument that the forum non conveniens doctrine does not apply to an action where the ACTA confers subject matter jurisdiction upon a district court. Plaintiffs do not assert this proposition in the text of their brief, confining it to an extended footnote, but they make the argument clearly enough there, see Opp. Brief at 21 n. 12 (“There is authority for the contention that it is inconsistent with the purpose of the Alien Tort Claims Act to even apply the doctrine of forum non conveniens to ACTA claims.... Such holdings mandate the conclusion that the doctrine oí forum non conveniens does not apply to cases brought pursuant to the ATCA.”) (citations omitted), and reiterated it at oral argument on the motion, see Tr. at 62 (“I think there is a very good argument that forum non conveniens should not even apply” to an action brought under the ATCA.). I deal with this contention first, since if plaintiffs are correct that the ATCA renders forum non conveniens inapplicable, there is no need to engage in a forum non conveniens analysis. I decline to hold that a case properly brought under the ATCA is immune from forum non conveniens analysis. No Second Circuit case reaches that result. On the contrary, counsel’s concession at oral argument that “forum non conveniens may be considered by the Court in an Alien Tort Claims Act case,” see supra note 22, is closer to the mark. In Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir.2000), upon which plaintiffs at bar place a principal reliance, the plaintiffs claim lay under the ATCA as supplemented in 1991 by the Torture Victim Prevention Act (TVPA), 28 U.S.C. § 1350 App. The Second Circuit reversed the district court’s forum non conveniens dismissal in favor of the courts of the United Kingdom and remanded the case to the district court for a more careful analysis of the traditional forum non conveniens factors. The Wiwa court stated its view that “in passing the Torture Victim Prevention Act, Congress has expressed a policy of U.S. law favoring the adjudication of such suits in U.S. courts,” but took the trouble to add: This is not to suggest that the TVPA has nullified, or even significantly diminished, the doctrine of forum non conveniens. The statute has, however, communicated a policy that such suits should not be facilely dismissed on the assumption that the ostensibly foreign controversy is not our business. The TVPA in our view expresses a policy favoring our courts’ exercise of the jurisdiction conferred by the ATCA in cases of torture unless the defendant has fully met the burden of showing that the Gilbert factors tilt strongly in favor of trial in the foreign forum. 226 F.3d at 106 (citation and internal quotation marks omitted). Thus in Wiwa the Second Circuit squarely rejected the notion, even in cases of torture, that the forum non conveniens doctrine is asphyxiated by the rarefied ATCA atmosphere. On the contrary, the doctrine breathes, perhaps even with a strength not “significantly diminished”; and certain it is that the court of appeals instructed the district court, on remand of Wiwa’s ACTA-TVPA torture action, to submit the case to traditional forum non conveniens analysis. The most comfort plaintiffs can derive from the quoted discussion in Wiwa is a suggestion that when the Second Circuit used the phrase “fully met” with reference to the defendant’s burden, instead of just saying “met,” the court implied without stating directly that a defendant in a TVPA case bore an enhanced forum non conveniens burden. But this interpretation is Delphic at best, and I am not at all sure that the court of appeals intended that implication. In any event, Wiwa cannot possibly be read to hold that forum non conveniens does not apply at all to ACTA-TVPA cases. The other recent Second Circuit decision that resonates on this particular point is Jota, 157 F.3d 153. As I observed in Part I, supra, the plaintiffs in Jota, who like those at bar invoked the ATCA as the basis for subject matter jurisdiction, alleged the commission by Texaco of environmental torts against residents of Ecuador that closely resemble the environmental torts the Peruvian plaintiffs at bar allege against Southern Peru. District Judge Rakoff had dismissed the complaint on grounds of forum non conveniens in favor of the courts of Ecuador, international comity, and failure to join an indispensable party. Reversing on the forum non conveniens ground, the Second Circuit said: We hold that dismissal on the ground of forum non conveniens was erroneous in the absence of a condition requiring Texaco to submit to jurisdiction in Ecuador and that the dismissal on this ground improperly rested entirely on adoption of another district court’s weighing of the relevant factors in litigation that is arguably distinguishable. 157 F.3d at 157. Accordingly the court of appeals remanded the case to Judge Rakoff for further forum non conveniens analysis. In doing so, Judge Newman’s opinion took care to observe in a footnote that the Second Circuit “expressed] 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 non-governmental entity under the ATA, or how the forum non conve-niens balance for ATA claims is to be struck when alien plaintiffs select a United States forum for a suit against a domestic corporation. Cf. Kadic v. Karadzic, 70 F.3d 232, 241-44 (2d Cir.1995) (upholding jurisdiction over ATA claim against individual for alleged violations of law of nations involving genocide, war claims, and violations of humanitarian law, and rejecting forum non conve-niens defense in suit against individual alien). 157 F.3d at 159 n. 6 (emphasis added). On remand, therefore, Judge Rakoff was at liberty to reach his own conclusions on the questions the court of appeals expressly declined to decide, including whether the presence of an ATCA claim had any effect upon traditional forum non conveniens analysis. In his opinion following remand, Aguinda v. Texaco, Inc., 142 F.Supp.2d 534 (S.D.N.Y.2001), Judge Rakoff again dismissed the complaint, this time solely upon the ground of forum non conveniens. During oral argument on the present motion, which took place five months after Judge Rakoff filed his opinion on remand, counsel for plaintiffs at bar stated that in Jota “the Second Circuit made mention of the fact that the plaintiffs had suggested that forum non conveniens should not be available in an Alien Tort Claims Act case and that the plaintiff should bring that to the attention of [the] district court,” but then inexplicably added: “Judge Rakoffs decision does not address it.” Tr. at 62. In point of fact, Judge Rakoff addressed at length and in scholarly detail the effect vel non of an ATCA claim upon the doctrine of forum non conveniens, see 142 F.Supp.2d at 552-554, and dismissed the complaint on the basis of the doctrine. An appeal from Judge Rakoff s dismissal of Aguinda is pending, and may very well lead to further elucidation by the Second Circuit. For the present, however, the decisions of the Second Circuit furnish no authority for the plaintiffs’ argument that the presence of an ATCA claim in a complaint renders the doctrine of forum non conveniens entirely inapplicable to the case. Quite to the contrary: Second Circuit precedent, which of course I am bound to follow, seems to point in precisely the opposite direction. Therefore I reject the plaintiffs’ contention that as a matter of law the forum non conveniens doctrine cannot be applied to this ATCA case. 2. Burden of Proof A defendant such as Southern Peru, moving to dismiss a complaint on the ground of forum non conveniens, “bears the burden of proof on all elements of the motion.” Bank of Credit and Commerce Int’l (OVERSEAS) Ltd. v. State Bank of Pakistan, 273 F.3d 241, 246 (2d Cir.2001) (citation omitted). “To prevail on & forum non conveniens motion to dismiss, the defendant must show as a threshold matter that an adequate alternative forum exists.” DiRienzo v. Philip Servs. Corp. 232 F.3d 49, 56 (2d Cir.2000). 3. The Adequacy of the Courts of Peru as an Alternative Forum “The first step in a forum non conveniens analysis is for the court to establish the existence of an adequate alternative forum.... After concluding that an adequate alternative forum exists, the court must weigh the public and private interests identified in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947).” Bank of Credit and Commerce, 273 F.3d at 246 (one citation omitted). The question in the case at bar is whether the courts of Peru furnish an adequate alternative forum for the claims the plaintiffs assert in their complaint. As noted in Part U.B.2., Southern Peru bears the burden of proof on this question. The Second Circuit has recently said that “[a]n alternative forum is generally adequate if: (1) the defendants are subject to service of process there; and (2) the forum permits litigation of the subject matter of the dispute.” Bank of Credit and Commerce, 273 F.3d at 246 (citations and internal quotation marks omitted). In a prior opinion in the case at bar, reported at 2002 WL 221608 (Feb. 13, 2002), I referred to plaintiffs’ contention that “legal counsel is unavailable in Peru to these plaintiffs” because, according to the affidavit of an attorney practicing in 116, Peru, Peruvian attorneys do not take cases for plaintiffs on a contingent fee basis, and in view of the indigence of the plaintiffs at bar, “none of them can afford to retain legal counsel in Peru or bear the initial costs of litigation.” 2002 WL 221608 at *1. Counsel were directed to submit further briefs on this issue and have done so. Although earlier district court opinions have regarded plaintiffs’ reduced financial circumstances and the unavailability of contingent fees as bearing upon the adequacy or availability of the suggested alternative forum, see McKrell v. Penta Hotels (Fr.), S.A., 703 F.Supp. 13, 14 (S.D.N.Y.1989); Agyenkwa v. Am. Motors Corp., 622 F.Supp. 242, 245 (E.D.N.Y. 1985); Fiorenza v. United States Steel Int’l, Ltd., 311 F.Supp. 117, 120 (S.D.N.Y. 1969), more recently in Murray v. Brit