Full opinion text
ORDER ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION WILKEN, District Judge. Plaintiffs in these two related eases are Falun Gong practitioners who claim that acts of Defendants, local government officials of the People’s Republic of China, violated the Alien Tort Claims Act (ATCA) and the Torture Victims Protection Act (TVPA). After Defendants failed to file a responsive pleading,the Clerk entered default. Plaintiffs filed a motion for default judgment in. both cases. The Court referred the motions to Magistrate Judge Chen, who issued a Report and Recommendation. Upon the Court’s request, the United States Department of State filed a statement of interest in each case, expressing its concerns with.the Report and addressing Plaintiffs’ objections to the Report. The United States asked the Court to stay this case pending the Supreme Court’s forthcoming ruling in Sosa v. Alvarez-Machain, - U.S. -, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004), and the Court did so. Then it ordered supplemental briefing from the parties and requested a further statement of interest from the United States in light of Sosa. The Court then referred the matter back to Magistrate Judge Chen for an amended report in the light of Sosa. Plaintiffs filed objections to the Amended Report. Having reviewed the Magistrate Judge’s Amended Report and all of the papers filed by the parties and the United States, the Court finds the Report correct, well-reasoned and thorough. The Report adequately considers and properly rejects the arguments advanced by Plaintiffs in their objections. In addition, the Report properly addresses the concerns expressed by the United States. Thus, the Court OVERRULES Plaintiffs’ objections and adopts the Amended Report in its entirety. The Court DENIES Plaintiffs’ motion for de novo determination of this matter. Judgment shall enter accordingly. IT IS SO ORDERED. AMENDED REPORT AND RECOMMENDATION RE: PLAINTIFFS’ MOTION FOR ENTRY OF DE- ' FAULT JUDGMENT (Docket No. 18, 19) (Docket No. 18) CHEN, United States Magistrate Judge. TABLE OF CONTENTS I.GENERAL BACKGROUND. l — i tO 05 05 A. Jane Doe I, et al. v. Liu Qi. l — i tO 05 05 B. Plaintiff A, et al. v. Xia Deren.1. 1 — i tO 05 CO C. , Response by the U.S. State Department and the PRC I — i DO “•3 O 1271 II.CRITERIA FOR DEFAULT JUDGMENT. III. SERVICE OF PROCESS .1274 IV. THE ALIEN TORT CLAIMS ACT AND TORTURE VICTIM PROTECTION ACT.1276 V. THE FOREIGN SOVEREIGN IMMUNITY ACT i-i to CD A. Application of FSIA to Individual Officials ... l — i to 00 i — 1 1283 B. Whether Scope of Authority is Measured by International or Foreign Sovereign’s Law C. Whether Defendants Acted Within the Scope of Their Authority Under Chinese Law.1285 D. FSIA Sovereign Immunity Not Applicable to Defendants Liu and Xia_1287 VI. ACT OF STATE DOCTRINE.1288 A. Background on the Act of State Doctrine .1288 B. Whether Defendants’ Conduct Constituted Acts of State.1292 C. The Sabbatino Analysis.1295 1. Degree of International Consensus.1296 2. Implications for Foreign Relations .1296 3. Continued Existence of the Accused Government.1303 4. Whether the Foreign State Was Acting in the Public Interest.1306 5. Summary.1306 VII. ANALYSIS OF PLAINTIFF’S HUMAN RIGHTS CLAIMS 1306 A. The Torture Claims (TVPA).. 1312 Standing for Plaintiff B. 1313 td Legal Sufficiency of the Plaintiffs’ Claims of Torture 1313 O 1. Color of Law or Authority. 1314 2. Acts Rising to the Level of Torture. 1314 a. Subjected to Torture While Under the Actor’s Custody or Physical Control . 1314 b. Severe Pain or Suffering. 1314 c. Requisite Intent. 1318 3. Exhaustion of Local Remedies and Statutes of Limitations .. 1319 Cruel, Inhuman or Degrading Treatment (ATOA). 1320 P Arbitrary Detention (ATCA). 1325 H 1. Doe v. Liu. 1326 2. Plaintiff A v. Xia. 1327 3. Conclusion. 1328 VIII. COMMANDER RESPONSIBILITY. 1328 IX. CONCLUSION & RECOMMENDATION 1334 Before this Court is a joint motion by the Plaintiffs of two related lawsuits asserting claims under the Alien Tort Claims Act and Torture Victim Protection Act. The Plaintiffs are practitioners and supporters of Falun Gong, a spiritual movement in the People’s Republic of China (hereinafter referred to as “China” or “PRC”). The Plaintiffs in these two cases have moved for entry of default judgment against two Defendants — local governmental officials of China accused of violating their human rights. Plaintiffs’ joint motion was heard on October 30, 2002. Extensive post-hearing briefs were submitted by the parties. On June 11, 2003, this Court issued a Report and Recommendation recommending that this motion be GRANTED IN PART and that default judgment for declaratory relief entered as to certain claims and DENIED IN PART as to the remaining claims which should be dismissed. The Plaintiffs filed objections with District Judge Wilken. During the pendency of the proceedings before Judge Wilken, the Supreme Court decided Sosa v. Alvarez-Machain, - U.S. -, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). Judge Wilken ordered further briefing in light of Sosa. She then referred the matter back to this Court for an amended Report and Recommendation addressing Sosa. For the reasons stated herein, the Court concludes that its initial Report and Recommendation is entirely consistent with the Supreme Court’s decision in Sosa. As stated in its previous Report and Recommendation, the Court finds that Plaintiffs’ claims under the Alien Tort Claims Act and Torture Victim Protection Act are not barred by sovereign immunity under the Foreign Sovereign Immunity Act because the alleged conduct cognizable in this suit were not validly authorized under Chinese law. However, justiciability concerns embodied in the act of state doctrine counsel against remedies other than declaratory relief. Those concerns are driven primarily by the potential impact these suits may have on foreign relations and the fact that the suits are brought against sitting officials and challenge current governmental policies. The Court also finds that as to the Plaintiffs’ specific substantive claims, the Court should enter default judgment against Defendants for declaratory relief on certain claims. In particular, the Court recommends entry of judgment declaring that certain Plaintiffs were subject to torture, cruel, inhuman and degrading treatment, and arbitrary detention in violation of the Alien Tort Claims Act and Torture Victim Protection Act. The Court finds that it would not be appropriate to adjudicate the claims relating to broad systemic conduct of the government. Other claims have not been established on the merits. The Court recommends the remaining claims be dismissed. I. GENERAL BACKGROUND Falun Gong is a spiritual practice that blends aspects of Taoism, Buddhism and the meditation techniques of qigong (a traditional martial art) with the teachings of Li Hongzhi, who was forced to leave China under threat of arrest in 1998. Liu Compl. ¶ 1. Falun Gong has followers in China and internationally. Id. In July 1999, Chinese President Jiang Zemin and other high ranking officials issued statements declaring Falun Gong to be an illegal organization and orders initiating a widespread governmental crackdown against Falun Gong and its practitioners. Liu Compl. ¶ 30. In October 1999, the People’s Congress, the Chinese national legislature, passed a series of laws outlawing “cults,” defined to include Falun Gong. Id. As a result, according to the Plaintiffs, over 100,000 practitioners have been subjected to some form of “punishment,” including arrest and detention in prison facilities, labor camps, and mental hospitals, brutal beatings, starvation, and other forms of torture, including electric shock and nerve-damaging drugs. Liu Compl. ¶ 31; Xia Compl. ¶ 19. Plaintiffs allege many have died while in the custody of law enforcement or prison personnel. Id. The instant suits seek both an award of damages and equitable relief. A. Jane Doe I, et al. v. Liu Qi Between February 1999, before the governmental crackdown began in mid-1999, and early 2003, Defendant Liu Qi (hereinafter referred to as “Liu”) served as the mayor of Beijing. Liu Compl. ¶ 32. Beijing has been a focal point for the repression and persecution of the Falun Gong. Id. As the mayor of Beijing, Liu had authority to formulate all provincial policies and lead the executive branches of the city government, including the Public Security Bureau of Beijing. Id. ¶ 35. The police and other security forces operate under the Public Security Bureau of Beijing. Id. In May 2000, Jane Doe I, a citizen of the PRC, went to Beijing’s Tiananmen Square to protest the. PRC’s persecution, arrest, and torture of Falun Gong practitioners. Liu Compl. ¶ 13. Jane Doe I was arrested during the protest and held without charge. Id. For twenty days, she was not allowed to see family members or a lawyer and was beaten and interrogated regularly. Id. On at least one occasion she was tortured with electric shocks by needles placed in her body. Id. ¶ 14. When she lost the ability to eat, she was force-fed via a tube placed in her nose, which caused her to cough up blood. Id. ¶ 15. After her release, Jane Doe I was subject to constant surveillance, arrests and interrogation. She subsequently fled China and presently resides in the United States. Id. ¶ 16. In May 2000, Jane Doe II, a citizen of the PRC, was arrested and beaten so severely that she temporarily lost her hearing at a protest in Tiananmen Square. Liu Compl. ¶ 18. She was held without charge for approximately twenty-seven days, during which she was interrogated, regularly beaten to the point of unconsciousness, stripped of her clothing, and force-fed via a tube placed in her nose. Id. ¶¶ 18-24. Suffering further persecution after her release, Jane Doe II fled China and received political asylum in the United States. Id. ¶ 25. On November 20, 2001, the following individuals who have joined as plaintiffs herein were arrested in Tiananmen Square during a demonstration in support of the Falun Gong: 1. Helen Petit, a citizen of France, was physically and sexually assaulted by officers during her arrest and interrogation. Liu Compl. ¶ 26. Petit was never advised of any charges and was not allowed to contact her embassy or consult with a lawyer. Id. After being detained for 24 hours or more, Petit was deported back to France. Id. 2. Martin Larsson, a citizen of Sweden and a university student in the United States, was interrogated by officers and physically assaulted by four guards when he refused to sign a statement written in Chinese and to allow them to take pictures of him. Liu Compl. ¶ 27. Larsson was never advised of any charges against him and was not allowed to contact his embassy or consult with a lawyer. Id. Larsson was deported to Sweden the following day. Id. 3. Leeshai Lemish, a citizen of both Israel and the United States and a university student in the United States, was interrogated and beaten during his 27 hour detention and not allowed to sleep, after which he was placed on a flight to Vancouver. Liu Compl. ¶ 28. Lemish was never advised of any charges against him and was not allowed to contact his embassy or consult with a lawyer. Id. 4. Roland Odar, a citizen of Sweden, was beaten during his arrest and interrogation, and deported the following day to Sweden. Liu Compl. ¶ 29. He was never advised of any charges against him and was not allowed to contact his embassy or consult with a lawyer. On February 7, 2002, Jane Doe I, Jane Doe II, Helene Petit, Martin Larsson, Leeshai Lemish and Roland Odar (hereinafter referred to as the “Liu Plaintiffs”) filed suit against Defendant Liu for torts committed in violation of international and domestic law including the Torture Victim Protection Act (hereinafter referred to as the “TVPA”), 28 U.S.C. § 1350 note § 1 (2002). The Liu Plaintiffs allege this Court has jurisdiction over this action based on the Alien Tort Claims Act (hereinafter referred to as the “ATCA”), 28 U.S.C. §§ 1331, 1350 (2002). The Liu Plaintiffs also allege that Defendant Liu planned, instigated, ordered, authorized, or incited police and other security forces to commit the abuses suffered by the Liu Plaintiffs, and had command or superior responsibility over, controlled, or aided and abetted such forces in their commission of these abuses. Liu Compl. ¶ 2. Thus, Liu knew or reasonably should have known that Beijing police and other security forces were engaged in a pattern and practice of severe human rights abuses against Falun Gong practitioners, and breached his duty, under both international and Chinese law, to investigate, prevent and punish human rights violations committed by members of the police and other security forces under his authority. Id. ¶¶ 33-34. The Liu Complaint alleges the following claims under the TVPA and/or the ATCA: (1) torture of Plaintiffs Jane Doe I and Jane Doe II particularly; (2) cruel, inhuman or degrading treatment; (3) arbitrary detention; (4) crimes against humanity; and (5) interference with freedom of religion and belief. Liu Compl. ¶¶ 39-72. Plaintiffs seek compensatory, punitive and exemplary damages, reasonable attorneys’ fees and costs of suit, and other and further relief as the court may deem just and proper. Id. ¶ 72. Defendant Liu was personally served with the summons and complaint, and supplemental documents by a process server on February 7, 2002 at the San Francisco International Airport (discussed infra Part III). On March 8, 2002, the Liu Plaintiffs filed a motion for entry of default. On March 12, 2002, the Clerk of this Court entered Liu’s default. On March 14, 2002, Judge Claudia Wilken ordered the Liu Plaintiffs to file a motion for default judgment within 30 days, and which upon filing of the motion, was to be referred to a Magistrate Judge for a report and recommendation. On April 11, 2002, the Liu Plaintiffs filed this motion for judgment by default. B. Plaintiff A, et al. v. Xia Deren Defendant Xia Deren (hereinafter referred to as “Xia”) presently serves as Deputy Provincial Governor of the Liao Ning Province. According to the Xia Plaintiffs, this province is known to be one of the most repressive and abusive jurisdictions in China with regard to the arrest and treatment of Falun Gong practitioners. Xia Compl. ¶ 20. Since President Jiang Zemin’s banning order of July 1999, at least 27 Falun Gong practitioners have allegedly died from torture inflicted in labor camps and detention centers in Liao Ning Province. Id. Masanjia Labor Camp, located in the capital of Liao Ning Province, Shenyang City, is purported to be one of the most notorious prison labor camps in the country and is used to incarcerate and torture Falun Gong practitioners. Id. From January 1998 through November 2000, Defendant Xia served as Deputy Mayor of Da Lian City, Liao Ning Province, and then as Deputy Mayor of General Affairs and Member of the Da Lian City Council from November 2000 through May 2001. Xia Compl. ¶ 14. In May of 2Q01, he assumed responsibility as Deputy Provincial Governor for Liao Ning Province. Id. While serving as Deputy Mayor, Deputy Mayor of General Affairs and Member of the Da Lian City Council, Xia exercised general supervisory authority over municipal affairs, including the operation of the law enforcement and correctional systems. Id. ¶ 15. Xia also served on the general governance body that oversees and directs policy-making and the carrying out of government policies and functions for the affected jurisdiction. Thus, Defendant Xia played a major policy-making and supervisory role in the policies and practices that were carried out in Da Lian City during that period. Id. In his present role as Deputy Provincial Governor of Liao Ning Province, Xia manages and supervises the News and Publications Bureau and all operations related to the control of the media, governmental communications, and distribution of government publications and notices. Id. ¶ 16. Defendant Xia also plays a key part in the general governance body that exercises general jurisdiction, supervision and authority over governmental policies and practices for the Province as whole, including law enforcement and prison management questions, and policies and practices associated with the govern-mentally mandated crack-down and persecution of the Falun Gong spiritual movement and its practitioners. Id. ¶ 17. Plaintiff A, a 53 year old female, was a citizen and resident of Da Lian City in Liao Ning Province during the period that Xia served as Deputy Mayor of Da Lian City. She was arrested and detained for long periods on two occasions in' 1999 and 2000. While in detention, she was subjected to torture, such as being denied food and water, being required to remain standing and handcuffed against the backs of other prisoners for prolonged periods of time, being denied sleep, being denied use of toilet facilities, and being forced to watch'the torture of others, including another Falun Gong practitioner who was placed on a rusty torture device called Di Lao. Xia Compl. ¶¶ 9, 25. Plaintiff B, a former resident of Liao Ning Province, brings this complaint on behalf of herself and her parent, who still resides in Liao Ning Province and is currently incarcerated in Masanjia Labor Camp. Xia Compl. ¶ 10. Plaintiff B’s Parent was arrested and detained twice, first in 2000 when the parent was detained for an extended period, and again in 2001. Id. At the labor camp, Plaintiff B’s Parent has been subjected to physical abuse, torture and highly degrading treatment and punishment, including arbitrary, long-term detention and deprivation of liberty and security of the person. Id. In 1999, Plaintiff C, a 39 year old male and former resident of Liao Ning Province, was arrested, detained for a number of days, and brutally beaten by the police with chains and an electric baton when he went to Beijing to support Falun Gong practitioners and protest their repression. Xia Compl. ¶ 11. In April 2000, he was arrested a second time in Liao Ning Province and while in detention, beaten and tortured repeatedly. On one occasion when he refused to answer questions, he was beaten to unconsciousness, with blood coming from his mouth and nose, and his foot badly mangled. Id. ¶¶ 11, 27. On other occasions, he was hung from water pipes for three days, handcuffed to other prisoners, and not allowed to sleep. Id. On February 8, 2002, Plaintiffs A, B, and C (hereinafter referred to as the “Xia Plaintiffs”) filed suit against Defendant Xia for torts committed in violation of international and domestic law under the ATCA and the TVPA. 28 U.S.C. § 1350. The Xia Plaintiffs allege that Defendant Xia’s actions led to the abuses inflicted upon them. They allege that Defendant Xia together with other officials, acted in their official capacity and under color of law, to persecute, punish and intimidate Falun Gong practitioners in violation of international and domestic laws. Xia Compl. ¶ 28. The suit is styled as a class action but Plaintiffs have never moved to certify the class. Defendant Xia was also personally served with the summons, complaint, and supplemental documents by a process server on February 8, 2002 at the Fremont Hilton Hotel in Newark, California (discussed infra Part III). The Xia Complaint alleges, inter alia, the following claims under the TVPA and/or the ATCA: (1) torture; (2) genocide; (3) violation of one’s right to life; (4) arbitrary arrest and imprisonment; and (5) violation of one’s right to freedom of thought, conscience and religion. Xia Compl. ¶¶ 29-35. The Xia Plaintiffs seek compensatory, punitive and exemplary damages; a declaratory judgment confirming the unlawful nature of the pattern and practice of gross violations of human rights that have taken place, injunctive relief prohibiting further unlawful action, reasonable attorneys’ fees and costs for this litigation, and other and further relief as the court may deem just and proper. Id. ¶ 36. Defendant Xia was served but did not enter an appearance. On June 18, 2002, the Xia Plaintiffs filed a motion for entry of default. On June 26, 2002, the Clerk of this Court entered Xia’s default. Having been notified of a related case, the Liu case, on June 28, 2002, the case was reassigned from Judge Larson to Judge Wilken for all further proceedings. On August 1, 2002, Judge Wilken ordered the Xia Plaintiffs to file a motion for default judgment within 30 days, and upon filing of the motion for default judgment, referred the case to this Court for a report and recommendation. Since the Xia case was related to the Liu case, both cases were referred to this Court for consolidated hearing. On August 5, 2002, this Court ordered a joint briefing schedule and joint hearing date on the Plaintiffs’ motions for default judgment. C. Response by the U.S. State Department and the PRC On September 27, 2002, at the invitation of this Court, the United States submitted a Statement of Interest and a statement made by the People’s Republic of China in response to Plaintiffs’ motions for default judgment against Defendants Liu and Xia. In its Statement of Interest, the United States State Department (hereinafter referred to as “State Department”) urged against adjudication of the instant suits. In its letter, the Department expresses the view that: In our judgment, adjudication of these multiple lawsuits [challenging the legality of the Chinese government’s actions against the Falun Gong] movement, including the cases before Magistrate Chen, is not the best way for the United States to advance the cause for human rights in China.... ... The Executive Branch has many tools at its disposal to promote adherence to human rights in China, and it will continue to apply these tools within the context of our broader foreign policy interests. We believe; however, that U.S. courts should be cautious when asked to sit in judgment on the acts of foreign officials taken within their own countries pursuant to their government’s policy.... Such litigation can serve to detract from, or interfere with, the Executive Branch’s conduct of foreign policy. ... [Practical considerations, when coupled with the potentially serious adverse foreign policy consequences that such litigation can generate, would in our view argue in favor of finding the suits non-justiciable. Letter from William H. Taft, TV to Assistant Attorney Gen. McCallum of September 25, 2002, at 7-8 (emphasis in original). In its letter transmitted to the Court, the PRC contends, inter alia, that the Falun Gong practitioners’ lawsuits against Chinese public officials are “unwarranted,” as the officials’ treatment of Falun Gong practitioners at large is consistent with China’s domestic and international legal obligations. Translation of Statement of the Government of the People’s Republic of China on “Falun Gong” Unwarranted Lawsuits, September 2002, ¶¶ 1-2 (hereinafter “Translation of China’s Statements”). The PRC contends that Falun Gong followers have perpetrated crimes that have brought “extremely grave damages to the Chinese society and people.” Id. ¶ 1. The PRC argues that Falun Gong in particular was banned after the PRC concluded that it was a “cult” and an “unregistered and illegal organization.” Id. ¶ 2. The PRC accuses Falun Gong’s founder, Li Hongzhi, and certain practitioners of committing activities that pose a “serious threat to public security.” Id. ¶ 1. Furthermore, the PRC contends that the plaintiffs’ claims are not justiciable. Id. ¶ 3. The PRC posits that none of the exceptions under the Foreign Sovereign 'Immunity Act (“FSIA”) applies to grant the Cdurt jurisdiction over the claims. Id. In addition, the PRC contends both that outlawing the Falun Gong and punishing individuals for illegal activities 'related to the Falun Gong are supported by the Chinese Constitution and laws' and thus, constitute acts of state. Id. As such, no foreign courts can question them. Id. Moreover, adjudication of the “false and unwarranted lawsuits [is] detrimental to China-US relations.” Id. The PRC specifically accuses Falun Gong organizations based in the United States of “frame-ups” in which they sue Chinese officials who visit the United States in an effort “to obstruct the normal exchanges and cooperation and poison the friendly relations and cooperation between two countries.” Id. ¶ 4. The PRC concludes with a reiteration of the detrimental effects of adjudication on the common interests of the two nations. Id. II. CRITERIA FOR DEFAULT JUDGMENT Federal Rule of Civil Procedure 55(b)(2) permits a court, following a defendant’s default, to enter a final judgment in a case. However, entry of a default judgment is not a matter of right. Its entry is entirely within the court’s discretion and may be refused where the court determines no justifiable claim has been alleged or that a default judgment is inappropriate for other reasons. See Draper v. Coombs, 792 F.2d 915, 924 (9th Cir.1986); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir.1980). Where, as here, a default has been entered, the factual allegations of each complaint together with other competent evidence submitted by the moving party are normally taken as true. See TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir.1987); Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir.1978). However, this Court must still review the facts to insure that the Plaintiffs have properly stated claims for relief. See Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir.1992) (“necessary facts not contained in the pleadings, and claims which are legally insufficient, are not established by default”); Apple Computer Inc. v. Micro Team, 2000 WL 1897354, at *3 n. 5 (N.D.Cal.2000) (“Entry of default judgment is not mandatory upon Plaintiffs request, and the court has discretion to require some proof of the facts that must be established in order to determine liability.”) (citing 10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2688 (3rd ed.1998)). In Eitel v. McCool, 782 F.2d 1470 (9th Cir.1986), the Ninth Circuit enumerated seven factors that a court may consider in determining whether to grant default judgment: (1) the merits of the plaintiffs substantive claim; (2) the sufficiency of the complaint; (3) the sum of money at stake in the action; (4) the possibility of prejudice to the plaintiff; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decision on the merits. Id. at 1471-72; see also Pepsico, Inc. v. Cal. Sec. Cans, 238 F.Supp.2d 1172, 1174 (C.D.Cal.2002). The consolidated actions now before this Court are hardly the kind of a garden variety cases in which default judgments are sought. Cf. e.g., Bd. of Trs. of Sheet Metal Workers v. Gen. Facilities, Inc., 2003 WL 1790837 (N.D.Cal.2003) (default judgment in ERISA action against distressed employer to recover unpaid contributions to employee benefit funds) with Hon. John M. Walker, Jr., Domestic Adjudication of International Human Rights Violations Under The Alien Tort Statute, 41 St. Louis U. L.J. 539, 539 (1997) (“It is safe to say that, quantitatively, international human rights law is not a major, or even a minor, component of the business of federal courts: it is a minuscule part of what we do.”). Plaintiffs bring claims under ACTA and TVPA for human rights violations allegedly committed in China and sanctioned by the PRC including, inter alia, torture, genocide, crimes against humanity, religious persecution, and arbitrary arrest and imprisonment. The cases implicate important and consequential issues of sovereign immunity and could impact foreign relations and diplomacy. Accordingly, the nature and gravity of the Liu and Xia cases mandate the factors that inform the Court’s discretion in ruling on a motion to enter default judgment, particularly the merits and justiciability of Plaintiffs’ substantive claims, be closely scrutinized. See Eitel, 782 F.2d at 1472 (There was no abuse of discretion to deny default judgment where “the district court could have had serious reservations about the merits of Eitel’s substantive claim, based upon the pleadings.”); Aldabe, 616 F.2d at 1092-93 (“Given the lack of merit in appellant’s substantive claims, we cannot say that the district court abused its discretion in declining to enter a default judgment in favor of appellant.”); In re Kubick, 171 B.R. 658, 662 (9th Cir. BAP1994) (“The court, prior to the entry of a default judgment, has an independent duty to determine the sufficiency of a claim, as stated in Rule 55(b)(2) ... ”); Lewis v. Lynn, 236 F.3d 766, 767 (5th Cir.2001) (in constitutional action against prison officials, district court did not abuse its discretion in denying default judgment when plaintiff had no meritorious claim). Given the unusual circumstances and the potential implications of these cases, the Court, in ruling upon Plaintiffs’ motion for entry of default judgment, must proceed with great caution. As will be evident, the Court accords greatest weight to the factors that address the merits of the Plaintiffs’ substantive claims and the sufficiency of the complaint and evidence supporting their claims. The merits analysis encompasses important immunity and justiciability issues central to this case. That analysis dictates that some but not all claims pertaining to individual Plaintiffs are justi-ciable and sustainable, but that relief should be limited to declaratory relief. Because justiciability concerns preclude damages and injunctive relief, the Eitel factors regarding the sum of money at stake and possible prejudice to the Plaintiffs are irrelevant. Furthermore, as explained below, Plaintiffs’ broad claims which involve systemic, class-based allegations and which squarely challenge official PRC policy are inappropriate for adjudication by default in view of the merits, the unreliability of the default process in this context, the disputability of facts material to these broader claims, and the strong policy favoring decision on the merits. Finally, although, as discussed below, personal service was effected on Defendants Liu and Xia, and thus personal jurisdiction was obtained under Burnham v. Superior Court, 495 U.S. 604, 110 S.Ct. 2105, 109 L.Ed.2d 631 (1990), there is no evidence that either Defendant has had substantial contact with the United States. Both were served during brief visits to the United States. While human rights suits under the ATCA and TVPA may lie against individuals served while visiting the United States (see e.g. Kadic v. Karadzic, 70 F.3d 232 (2nd Cir.1995)), Defendants’ situation stands in contrast to that of former officials and dictators who have taken residence in the United States. See e.g. In re: Estate of Ferdinand Marcos, Human Rights Litig. (“Hilao II”), 25 F.3d 1467 (9th Cir.1994); Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.1980). Thus, while their failure to appear and defend is not entirely excusable, it is less culpable in these circumstances. Finally, it should be noted that default judgments against foreign nations are generally disfavored. See Restatement (Third) of Foreign Relations Law § 459 cmt c (1987) (“Default judgments are disfavored, particularly in suits against foreign states.”) (hereinafter referred to as “Restatement”). Cf. 28 U.S.C. § 1608(e) (1994) (default judgment shall not be entered against a foreign state unless claimant establishes right to relief by “evidence satisfactory to the court.”). Courts have gone to considerable lengths to allow default judgments against foreign states to be set aside. See Jackson v. People’s Republic of China, 794 F.2d 1490, 1494-96 (11th Cir.1986) (in action by banks against the PRC for payment of bearer bonds issued by Imperial Chinese Government in 1911, district court properly set aside default judgment for lack of subject matter jurisdiction and where State Department informed the court that permitting the PRC to have its day in court will significantly further United States foreign policy interests); see also First Fid. Bank v. Gov’t of Ant. & Barb., 877 F.2d 189, 196 (2d Cir.1989) (reversing district court’s denial of motion to set aside default judgment where there were factual issues as to whether U.N. ambassador had apparent authority to obtain loan and waive governments sovereign immunity); Carl Marks & Co., Inc. v. USSR, 841 F.2d 26, 27 (2d Cir.1988) (per curiam) (in action against the Soviet Union to recover on debt instru-merits issued by the Russian Imperial Government in 1916, district court properly vacated default judgments for lack of jurisdiction). While the suits at bar are nominally brought against two government officials in the PRC, as discussed below, the suits require the Court to assess the legality of practices and policies that allegedly have been sanctioned by the PRC government. .The above factors inform the Court’s cautious approach in assessing Plaintiffs’ motions for entry of default judgment. III. SERVICE OF PROCESS Before addressing the merits, the Court must first turn to the question of personal jurisdiction in the Liu case. The Court granted the San Francisco Chinese Chamber of Commerce (“SFCCC”) leave to file an amicus curiae. brief which raised the question of whether service was properly effected on Defendant Liu. The SFCCC submitted a declaration of San Francisco Police Officer Higgins suggesting that Defendant Liu had not in fact been properly served with process. SFCCC Amicus Curiae Brief, at 2. Plaintiffs contend that the SFCCC lacks standing to raise the objection. The Court, however, permitted the filing of the brief because it has sua sponte power to examine whether service on Defendants was proper given its jurisdictional implications. Moreover, the interests of judicial economy weigh in favor of determining at the outset whether service of process was proper, based on all available information. Cf. Zhou v. Peng, 2002 WL 1835608 (S.D.N.Y.2002) (after alleged victims of human rights abuses at Tiananmen Square attempted service on Premier of the PRC, the U.S. State Department submitted a statement of interest arguing that service was inadequate, requiring additional briefing and a separate ruling on this issue). In response to the SFCCC’s brief, the Liu Plaintiffs submitted declarations and a video clip of the event at the San Francisco International Airport where Defendant Liu is alleged to have been served. From the evidence, it appears that the process server stood about an arms-length away from Defendant Liu as he entered a screening area at the San Francisco airport; the process server held out a copy of the Summons, Complaint and other court papers to the Defendant and said, “Mr. Liu Qi, these are legal documents from the U.S. District Court of California. It’s serious.” Leining Decl. ¶¶ 4-5 and Video Clip 2. When Mayor Liu turned away without accepting the papers, the server stated, “You can accept them or you do not have to, but you have been formally served by the U.S. District Court of Northern California.” Leining Decl. ¶ 6; Video Clip 3. The server then offered the documents to members of Mayor Liu’s entourage, but they were not accepted. Leining Decl. ¶ 8. Since default has already been entered, competent evidence submitted by the Plaintiffs regarding service of process must be taken as true at least where there is no contradictory evidence. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir.1987). The declaration of San Francisco Police Officer Higgins submitted by the SFCCC is not inconsistent with this evidence. Officer Higgins acknowledged that he was at the back of the group escorting Defendant Liu while Liu was at the front of the group; at the time Higgins heard yelling, his back was turned to the Mayor. Leining Decl. ¶ 7. It appears that the attempted service occurred before Officer Higgins turned his attention to the matter. Id. ¶¶ 5-7. Evidently, Officer Higgins was not in a position to view the events that constituted service of process and the fact that he did not see actual service is not inconsistent with the . evidence of service submitted by Plaintiffs. The SFCCC argues that Weiss v. Glemp, 792 F.Supp. 215 (S.D.N.Y.1992), in which the court found that a Catholic Cardinal from Poland visiting Albany, New York was not personally served with a defamation suit, is dispositive to the instant case. However, in Weiss, the court found that all the process server said to the defendant was ‘You want this for the ...” before the priest accompanying the Cardinal said “No, no, no” and deflected the papers. Id. at 222. Based upon facts found by the court, the Weiss court held: The Court concludes the attempted service was not effected “in a way reasonably calculated to apprise” Cardinal Glemp, or the persons accompanying him, that service of process was being attempted. The papers proffered by Mrs. Frisch could just as well have been a petition, a leaflet, a protest, or another non-legal document. Because the evidence does not show Cardinal Glemp attempted to evade service, the cases cited by Plaintiff involving defendants determined to evade process are not applicable here. Id. at 225 (citing Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). In contrast to Weiss, the evidence here establishes that the process server did in fact apprise Defendant Liu that service of process was being effectuated. As noted, the video clip establishes that the server stated, ‘You can accept them or you do not have to, but you have been formally served by the U.S. District Court of Northern California.” Video Clip 3. The Court finds that Plaintiffs’ efforts to serve Mayor Liu were “reasonably calculated, under all the circumstances, to apprise [the] interested parties of the pendency of the action.” Mullane, 339 U.S. at 314, 70 S.Ct. 652. The Court finds that Kadic v. Karadzic, 70 F.3d 232, 246 (2d Cir.1995), rather than Weiss, is on point. In Kadic, a process server approached Radovan Karadzic in a Manhattan hotel lobby, called Karadzic’s name, and announced the purpose of serving the court papers. The server came within two to six feet of Karadzic and attempted to hand him the documents, but was intercepted by security officers, at which point the papers fell to the ground. Id. The Second Circuit remanded the service issue to the district court with guidance that Fed.R.Civ.P. 4(e)(2) specifically authorizes personal service that comports with the requirements of due process. Id. at 247 (citing Burnham v. Super. Ct. of Cal, 495 U.S. 604, 110 S.Ct. 2105, 109 L.Ed.2d 631 (1990)). The district court, in Doe v. Karadzic, 1996 WL 194298 (S.D.N.Y. Apr 22, 1996), found that service was proper. Id. at *2. The key question is whether a party receives sufficient notice of the complaint and action against them. United Food & Commercial Workers Union v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir.1984); Chan v. Soc’y Expeditions, Inc. 39 F.3d 1398, 1404 (9th Cir.1994); Cf. Rio Props., Inc. v. Rio Intern. Interlink, 284 F.3d 1007 (9th Cir.2002) (permitting email as means of alternative service on foreign Internet corporation). In this case, the due process requirements Fed.R.Civ.P. 4(e)(2) have been satisfied because the efforts of Plaintiffs’ process server were “reasonably certain to inform those affected” of the action. Mullane, 339 U.S. at 315, 70 S.Ct. 652; see also Henderson v. United States, 517 U.S. 654, 672, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996) (“core function” of service is to apprise defendant of an action “in a manner and at a time that affords the defendant a fair opportunity to answer the complaint and present defenses and objections.”). IV. THE ALIEN TORT CLAIMS ACT AND TORTURE VICTIM PROTECTION ACT The Plaintiffs in both actions bring their claims under the Alien Tort Claims Act (“ATCA”), 28 U.S.C. § 1350, and Torture Victim Protection Act (“TVPA”), 28 U.S.C. § 1350 note 2(a)(1). The ATCA provides that the United States 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.” Id. § 1350. Though created under the Judiciary Act of 1789, the ATCA was little used until the last two decades. Kathryn L. Pryor, Does The Torture Victim Protection Act Signal the Imminent Demise of the Alien Tort Claims Act?, 29 Va. J. Int’l. L. 969, 974, 978 (1989). In 1980, the Second Circuit held the ATCA conferred jurisdiction and provided a cause of action for an alien attempting to sue a foreign national for the tort of torture committed outside the United. States in violation of the law of nations. Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.1980). In Filartiga, Dr. Joel Filartiga and his daughter Dolly, both citizens of Paraguay living in the United States, brought an action against Americo Pena-Irala, the former Inspector General of Police of Paraguay, for allegedly torturing Dolly’s brother to death in retaliation for Dr. Fi-lartiga’s political activities in Paraguay. Id. at 878. The Second Circuit held that “deliberate torture perpetrated under col- or of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties.” Id. In so doing, the court concluded that the law of nations is not a static body of law, but one that “has evolved and exists among the nations of the world today.” Id. at 881. The court looked to contemporary sources of customary international law, determined by the Supreme Court to include the practices of other countries, treaties, judicial opinions and' the works of scholars. Id. at 880 (citing United States v. Smith, 18 U.S. (5 Wheat.) 153, 160-61, 5 L.Ed. 57 (1820)). Consistent with Filartiga, the Ninth Circuit likewise held that the ATCA provides both federal jurisdiction and a substantive right of action for a “violation of the law of nations.” In re Estate of Ferdinand Marcos, Human Rights Litig. (“Hilao II”), 25 F.3d 1467, 1475 (9th Cir.1994) (internal quotation marks omitted). The international law, allegedly violated, need not provide a specific right to sue. Id.; Papa v. United States, 281 F.3d 1004, 1013 (9th Cir.2002). The court has held that what is required, in addition to the claim being brought by an alien for a tort, is that the cause of action be based on “violations of specific, universal and obligatory international human rights standards which ‘confer [ ] fundamental human rights standards upon all people vis-a-vis their own governments.’” Hilao II, 25 F.3d at 1475, Papa, 281 F.3d at 1013; (citing Filartiga, 630 F.2d at 885-87). See also Martinez v. Los Angeles, 141 F.3d 1373, 1383 (9th Cir.1998) (applicable norm of international law must be “specific, universal, and obligatory,” quoting Hilao II). Conduct which violates jus cogens — norms of international law that are so fundamental and universally recognized that they are binding on nations even if they do not agree to them — constitutes a violation of the “law of nations.” Siderman de Blake v. Republic of Arg., 965 F.2d 699, 714-15 (9th Cir.1992). To the extent the function of the ATCA was ambiguous, any such ambiguity has been removed by the Supreme Court’s decision in Sosa v. Alvarez-Machain, - U.S. -, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). In Sosa, the Court held that the ATCA (also referred to as the “ATS” in Sosa) enacted by the First Congress “was intended as jurisdictional in the sense of addressing the power of the courts to entertain cases concerned with a certain subject.” 124 S.Ct. at 2755. Although the ATCA is jurisdictional and does not itself create a cause of action, the Court found that Congress intended the ATCA to furnish jurisdiction of the courts over common law claims “for a relatively modest set of actions alleging violations of the law of nations.” Id. at 2759. In particular, Congress intended the federal courts to have jurisdiction in cases involving offenses against ambassadors, violations of safe conduct, and piracy. Id. The Court found that although the jurisdictional grant of the ATCA was focused on these torts in violation of the law of nations, Congress did not intend to limit the courts’ recognition of other common law claims. However, for a number of reasons that argue for judicial caution in this area, the Court held that courts should require any claim based on the present-day law of nations to rest 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 we have recognized. Id. at 2761-62. Thus, under the ATCA, “federal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when” the ATCA was enacted. Id. at 2766. The Court cited with approval as cases consistent with this standard Filartiga, supra, 630 F.2d at 890 (torturer has become an enemy of all mankind), Tel-Oren, supra, 726 F.2d at 781 (Edwards, J., concurring) (ATCA reaches a handful of heinous actions — each of which violates definable universal and obligatory norms), and In re Estate of Marcos Human Rights Litigation, supra, 25 F.3d at 1475 (action violations must be of a norm that is specific, universal, and obligatory). Applying that standard to the facts of the case, the Court found that the plaintiff in Sosa failed to state a cognizable claim under the ATCA. The Plaintiff contended he was arrested arbitrarily and in violation of international law when the DEA approved his abduction in Mexico by Mexican nationals who transported him across the border to the United States to stand trial. As characterized by the Supreme Court, the plaintiffs claim was that his arrest was arbitrary and forbidden by international law because no applicable domestic law authorized it. Id. at 2768. The Court rejected the notion that such a broad definition of an “arbitrary” arrest (prohibiting any officially sanctioned detention not positively authorized under the domestic law of some government) has the status of a “binding customary norm.” Id. at 2768. Although the Court acknowledged that some policies of prolonged arbitrary detention would suffice to state a claim, it concluded that “a single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment, violates no norm of customary international law so well defined as to support the creation of a federal remedy.” Id. at 2769. The question of whether a claim under the ATCA lies thus turns on whether the specific facts (not the general characterization of the claim) violates international norms that are “specific, universal and obligatory.” Id. at 2766, quoting, In re Estate of Marcos Human Rights Litigation, supra, 25 F.3d at 1475. Plaintiffs also bring claims under the Torture Victims Protection Act of 1991 (“TVPA”) which provides a cause of action for the recourse specific tort of torture. Congress passed the TVPA in response to Filartiga and Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C.Cir.1984). 28 U.S.C. § 1350, H.R.Rep. No. 102-367(I), 1992 U.S.C.C.A.N. 84; S.Rep. No. 102-249(II). The TVPA makes clear that a cause of action lies for victims of torture and extrajudicial killings. The TVPA provides in relevant part that “[a]n individual who, under actual or apparent authority, or color of law, of any foreign nation ... subjects an individual to torture shall, in a civil action, be liable for damages to that individual.” 28 U.S.C. § 1350 note 2(a)(1). The purpose of the statute, as stated by both the House and Senate reports, is to unambiguously provide a federal cause of action against the perpetrators of such abuse, as well as to extend a civil remedy to U.S. citizens who may have been tortured abroad. H.R.Rep. No. 102-367, at 3-5; S.Rep. No. 102-249, at 4-5. The legislation carries out the intent of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment opened for signature February 4, 1985, available at http:// 193.194.138.190/htm/menu3/b/h_cat39.htm (hereinafter referred to as “CAT”), ratified by the U.S. Senate on October 27, 1990, by ensuring that “torturers and death squads will no longer have a safe haven in the United States.” S.Rep. No. 102-249, at 4. Before reaching the substantive claims advanced by the Plaintiffs, the Court must address the threshold questions of whether the suit is barred under the Foreign Sovereign Immunity Act and is justiciable under the act of state doctrine. V. THE FOREIGN SOVEREIGN IMMUNITY ACT Congress enacted the Foreign Sovereign Immunity Act (hereinafter referred to as the “FSIA”), 28 U.S.C. § 1605 (2002), to guide the U.S. courts in determining when parties can maintain a lawsuit against a foreign state or its entities and agents and to prescribe the circumstances under which a foreign state would lose its sovereign immunity. The FSIA expressly governs the sovereign immunity of foreign govérnments. See Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989) (“We think that the text and structure of FSIA demonstrate Congress’ intention that the FSIA be the sole basis for obtaining jurisdiction over a foreign state in our courts.”); Phaneuf v. Republic of Indon., 106 F.3d 302, 304 (9th Cir.1997) (“The FSIA is the sole basis for subject matter jurisdiction over suits involving foreign states and their agencies and instru-mentalities.”). The question presented in the instant cases is whether the FSIA sovereign immunity applies to the individual Defendants. Because the issue is jurisdictional and .has important implications for foreign relations, the Court addresses the question sua sponte. Prior to the enactment of the FSIA, when faced with foreign governments’ requests for sovereign immunity, the State Department adhered to the policy announced in the “Tate Letter,” a 1952 letter from the State Department’s Legal Advis- or to the Justice Department that put other nations on notice that the U.S. would follow the restrictive theory of sovereign immunity. Tachiona v. Mugabe, 169 F.Supp.2d 259, 271 (S.D.N.Y.2001); Restatement (Third) of Foreign Relations Law, Part IV, Chap. 5 Introductory Note, at 392 (1987). In practice, however, the State Department’s immunity determinations often were not based on consistent or coherent standards. Mugabe, 169 F.Supp.2d at 272. These “suggestions of immunity” were frequently issued on the basis of the foreign government’s political and diplomatic pressures on the Executive Branch, and often yielded inconsistent outcomes. Id. Moreover, the courts were left without objective rules of law to apply in cases where the foreign state did not request immunity, or the State Department chose not to intervene. Id.; Restatement, at 393. This growing dissatisfaction with the Tate Letter motivated the passage of the Foreign Sovereign Immunities Act, which was intended to adopt “comprehensive rules governing sovereign immunity” bringing U.S. practice into conformity with many other nations who left sovereign immunity decisions exclusively to the courts. Mugabe, 169 F.Supp.2d at 272. Congress strictly limited foreign states’ immunity to actions arising from public or governmental acts, removed the State Department’s former exclusive and preemptive role in the foreign state immunity process, and transferred “the determination of the sovereign immunity from the executive branch to the judicial branch.” Id. Although the ATCA and TVPA confer jurisdiction and rights of action as discussed above, the FSIA provides that foreign sovereigns are immune from suit unless an enumerated exception applies. 28 U.S.C. §§ 1330, 1602-11 (2002). If the FSIA applies, it “trumps” the ATCA. In re Estate of Ferdinand E. Marcos Human Rights Litig. (“Trajano v. Marcos”), 978 F.2d 493, 497 (9th Cir.1992). The Plaintiffs do not contend that any statutory exception applies here. Rather, they contend that the FSIA is inapplicable because the Act confers jurisdiction on sovereign entities and applies to individual officials of a foreign state only if they are performing official acts within their legal authority. They contend that the Defendants in the instant case, by engaging in international law violations, acted beyond their authority and are thus not entitled to immunity under the FSIA. For the reasons stated below, the Court concludes that the Defendants are not immune, from suit under the FSIA. . , A. Application of FSIA to Individual Officials The FSIA confers immunity upon foreign states. A “foreign state” under the Act includes “an agency or instrumentality of a' foreign state.” 28 U.S.C. § 1603(a). FSIA defines such “agency or instrumentality” as any entity: (1) which is a separate legal person, corporate or otherwise, and (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and (3) which is neither a citizen of a State of the United States as defined in section 1332(c) and (d) of this title, nor created under the laws of any third country. 28 U.S.C. § 1603(b). Although the FSIA does not on its face explicitly apply to individual officials, the Ninth Circuit has held that the Act applies to foreign officials acting in an official capacity for acts within the scope of their authority. Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095, 1103, 1106-07 (9th Cir.1990). Otherwise, “to allow unrestricted suits against individual foreign officials acting in their official capacities ... would amount to a blanket abrogation of foreign sovereign immunity by allowing litigants to accomplish indirectly what [FISA] barred them from doing directly.” Id. at 1102. Often the critical question is whether “the officer purports to act as an individual and not as an official.” Chuidian, 912 F.2d at 1106. See e.g., Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020 1028 (D.C.Cir.1997) (personal action not immune); Doe v. Bolkiah, 74 F.Supp.2d 969, 974 (D.Haw.1998) (accord). To determine the answer, the Ninth Circuit considered whether an action against the foreign official is “merely a disguised action against the nation that he or she represents” and thus “ ‘the practical equivalent of a suit against the sovereign directly.’ ” Park v. Shin, 313 F.3d 1138, 1144 (9th Cir.2002) (quoting Chuidian, 912 F.2d at 1101). The Court must also ask “whether an action against the official would have the .effect of interfering with the sovereignty of the foreign state that employs the official.” Park, 313 F.3d at 1144 (citing Hilao II, 25 F.3d at 1472). Ordinarily, these factors would suggest Defendants Liu and Xia were acting in their official capacities since the Plaintiffs are in effect challenging “a government policy [of repression and mistreatment of Falun Gong] implemented by” the Defendants, not their personal decisions. Park, 313 F.3d at 1144. As discussed infra Part VI regarding the act of state doctrine, an adverse judgment might, depending on the scope of relief granted, “interfere with the sovereignty or policymaking power” of the PRC. Id. However, the cases at bar involve an additional layer of complexity not extant in Park. Even if it is assumed that Defendants Liu and Xia acted in their official, as opposed to personal, capacities in carrying out the challenged practices, there is a question whether their acts were validly authorized. Chuidian and Hilao II require an additional inquiry into whether the defendant official acted within or “outside the scope of his authority.” Hilao II, 25 F.3d at 1472. If an official acts “completely outside his governmental authority,” he or she loses his/her immunity. Chuidian, 912 F.2d at 1106 (citing United States v. Yakima Tribal Court, 806 F.2d 853, 859 (9th Cir.1986)). Moreover, “[w]here the officer’s powers are limited by statute, his actions beyond those limitations are considered individual and not sovereign actions. The officer is not doing the business which the sovereign has empowered him to do.” Chuidian, 912 F.2d at 1106 (citation omitted). The mere fact that acts were conducted under color of law or authority, which may form the basis of state liability by attribution, is not sufficient to clothe the official with sovereign immunity. Cf. Phaneuf, 106 F.3d at 308 (actual authority necessary to establish “commercial activity” exception to FSIA); Restatement § 453. If the official does not act “within an official mandate,” FSIA immunity does not apply. Hilao II, 25 F.3d at 1472 n. 8 (emphasis added). In Chuidian, a business owner sued an official of the Philippine government after the defendant official instructed the Philippine National Bank to dishonor a letter of credit issued to the plaintiff. The court held that the official was entitled to sovereign immunity under FSIA, because regardless of the propriety of his personal motivation, his action was within his “statutory mandate” as a member of the Presidential Commission on Good Government. Chuidian, 912 F.2d at 1106-07. Applying Chuidian, the Ninth Circuit in Trajano held that President Marcos’ daughter, Imee Marcos-Manotoc, who as National Chairman of the Kabataang Bar-anggay controlled the police and military intelligence, was not immune from suit brought by the mother of a victim who was allegedly tortured and murdered by police and military personnel. The court reasoned that Marcos-Manotoc admitted acting on her own authority, not on the authority of the Republic of the Philippines. Her acts were not within any official mandate and, not acts of an agent or instrumentality of a foreign state within the meaning of the FSIA. Trajano, 978 F.2d at 498. Similarly, in Hilao II, the Ninth Circuit held that President Marcos was not immune from suit charging him with arrests, torture and murders because his actions were “taken without official mandate pursuant to his own authority.” 25 F.3d at 1471. According to the complaint, the alleged actions violated international law, the constitution, and law of the Philippines. Id. The Philippine government confirmed that Marcos’ actions were “in violation of existing law.” Id. at 1472 (quotations omitted). Since his acts “were not taken within any official mandate,” they were not acts of an agency or instrumentality of a foreign state within the meaning of FSIA. Id. at 1472; see also Phaneuf, 106 F.3d at 306 (Ninth Circuit, citing Trajano and Chuidian, remanded case to district court to determine whether individual defendant’s actions were “within the scope of his authority” and thus immune under FSIA). The question here is whether Defendants Liu and Xia acted within their scope of authority such that they can be deemed to have acted as an agency or instrumentality of the People’s Republic of China under the FSIA. B. Whether Scope of Authority is Measured by International or Foreiyn Sovereiyn’s Law Both the Liu and Xia Plaintiffs contend that FSIA does not apply to officials who violate international law as established by either jus cogens norms or customary international law since any such act would by definition be beyond the scope of the official’s proper authority. However, case law, including that of the Ninth Circuit, establishes that the official’s scope of authority for the purposes of FSIA immunity analysis, is measured by the domestic law of the foreign state, not by international law. In Chuidian, the issue was whether the individual defendant acted within his “statutory mandate” governing his powers as