Full opinion text
ORDER RE: PRUDENTIAL EXHAUSTION MARGARET M. MORROW, District Judge. Plaintiffs, who are current and former residents of the island of Bougainville in Papua New Guinea (“PNG”), filed this putative class action in 2000 against defendants Rio Tinto pic and Rio Tinto Limited under the Alien Tort Claims Act (“ATCA” or “ATS”), 28 U.S.C. § 1350. Plaintiffs allege that defendants’ mining operations on Bougainville destroyed the island’s environment, harmed the health of its people, and incited a ten-year civil war, during which thousands of civilians died or were injured. They assert that defendants are guilty of war crimes and crimes against humanity, as well as racial discrimination and environmental harm that violates international law. In December 2008, an en banc panel of the Ninth Circuit Court of Appeals remanded the action to this court for the limited purpose of ascertaining whether, as an initial, prudential matter, exhaustion should be required. See Sarei v. Rio Tinto, PLC, 550 F.3d 822 (9th Cir.2008) (en banc) (“Rio Tinto IV”); id. at 825 n. 1 (McKeown, J.) (“As a prudential matter, in this case there is a certain logic to considering exhaustion before considering threshold grounds that may ‘deny[ ] audience to a case on the merits’ ” (citation omitted; alteration original)). I. PROCEDURAL BACKGROUND The factual background of this dispute is detailed extensively in the court’s prior order on defendants’ motion to dismiss; that discussion is incorporated by reference in this order. See Sarei v. Rio Tinto, 221 F.Supp.2d 1116, 1121-27 (“Rio Tinto I”); see also Rio Tinto IV, 550 F.3d at 825-26 (McKeown, J.) (factual and procedural overview). The court provides a brief summary of the procedural history of the action as relevant to the issue on remand below. A. Plaintiffs’ Lawsuit and Rio Tinto I On November 2, 2000, Alexis Holyweek Sarei, a California resident who lived in Bougainville between 1973 and 1987, and twenty-one individuals who then resided in Bougainville or elsewhere in PNG, filed this putative class action against Rio Tinto pic and Rio Tinto Limited (collectively “Rio Tinto”). Shortly thereafter, plaintiffs filed a first amended complaint asserting claims under the Alien Tort Claims Act, 28 U.S.C. § 1350. The amended complaint pled claims for crimes against humanity; war crimes/murder; violation of the rights to life, health, and security of the person; racial discrimination; cruel, inhuman, and degrading treatment; violation of international environmental rights; and a consistent pattern of gross violations of human rights. The pleading also alleged claims for negligence, public nuisance, private nuisance, strict liability, equitable relief, and medical monitoring. Plaintiffs contend that Rio Tinto’s mining operations destroyed Bougainville’s environment and the health of its residents. They also assert that, because the mine was a joint venture between Rio Tinto and the PNG government, and because Rio Tinto’s threats led PNG to use military force against the Bougainvilleans, it is responsible for human rights violations and war crimes committed during Bougainville’s civil war. On January 26, 2001, Rio Tinto filed a motion to dismiss plaintiffs’ complaint, asserting that the court lacked subject matter jurisdiction because plaintiffs had failed to state a cognizable claim under the Alien Torts Claim Act. Alternatively, it argued that the action should be dismissed on forum non conveniens grounds, as either Papua New Guinea or Australia was a more appropriate forum. Finally, Rio Tin-to challenged plaintiffs’ claims as nonjusticiable under the act of state, political question, and international comity doctrines. In July 2002, the court issued a final order on Rio Tinto’s motion to dismiss, which, inter alia, addressed its threshold argument that the action should be dismissed because plaintiffs had not exhausted remedies available locally in PNG. Rio Tinto I, 221 F.Supp.2d at 1132-33. Comparing the ATCA and the Torture Victims Protection Act (“TVPA”), the court concluded that there was no explicit statutory requirement that plaintiffs exhaust local remedies before filing suit in federal court under the ATCA, and no indication in the legislative history that Congress intended to impose such a requirement on ATCA claims. Id. at 1132-38. The court next considered Rio Tinto’s alternative argument, namely, that exhaustion of local remedies is a well-established principle of international law and should be required of an ATCA plaintiff pleading a “violation of the law of nations.” Id. at 1138-39. The court concluded that “the ATCA does not adopt wholesale all principles of international law,” but instead “creates a domestic cause of action for violations of international law,” which “need not impose the same conditions on a plaintiffs right to sue as international law or the domestic law of other nations.” Id. at 1139. Consequently, the court held that plaintiffs were not required to exhaust remedies available in PNG, or show that doing so would be futilé, before filing an ATCA suit in federal court. Id. B. Sosa, Rio Tinto II and Rio Tinto III The parties filed cross-appeals. Plaintiffs challenged the court’s dismissal of their ATCA claims on jurisdictional and political question grounds, while Rio Tinto maintained that the ATCA required exhaustion of local remedies. The appeal was argued and submitted on September 8, 2003; the panel withdrew the submission, however, on December 11, 2003, to await the Supreme Court’s opinion in Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). In Sosa, the Supreme Court held that the ATCA “is a jurisdictional statute creating no new causes of action.” It noted, however, that the statute “was intended to have practical effect the moment it became law,” and thus provided a “cause of action for [a] modest number of international law violations with a potential for personal liability.” Id. at 724, 124 S.Ct. 2739. Consistent with this view of the statute, 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” it identified when tracing the ATCA’s history. Id. at 725, 124 S.Ct. 2739. The Court observed in dicta that it “would certainly consider” an exhaustion requirement “in an appropriate [ATCA] case.” Id. at 733 n. 21, 124 S.Ct. 2739. Following Sosa, in June 2005, the par-' ties reargued their cross-appeals in this case and the matter was resubmitted. In August 2006, a three-judge panel of the Ninth Circuit affirmed in part, reversed in part, and remanded. See Sarei v. Rio Tinto, PLC, 456 F.3d 1069 (9th Cir.2006) (“Rio Tinto II”), withdrawn and superseded on rehearing in part by Sarei v. Rio Tinto, PLC, 487 F.3d 1193 (9th Cir.2007) (“Rio Tinto III”) (Fisher, J.). Rio Tinto petitioned for rehearing and rehearing en banc. Its petition was initially granted in part; the merits panel’s majority and dissenting opinions were withdrawn and superseded by Rio Tinto III. In Rio Tinto III, the panel considered Rio Tinto’s contention that an exhaustion requirement should be read into the ATCA. Id. at 1213-23. Examining congressional intent — of “paramount importance” in any exhaustion inquiry — the court concluded that the ATCA’s “legislative history stopped] short of a broad and unambiguous statement that Congress believed that the satisfaction of the international exhaustion rule was required as a matter of U.S. domestic law before an ATCA claim could be heard in a U.S. court.” Id. at 1214, 1217. Noting that the TVPA targeted only torture and extrajudicial killing claims, the panel observed that in “addressing causes of action based on norms of customary international law, Congress ... treated different kinds of substantive claims differently — a caution against importing an across-the-board exhaustion requirement into ATCA based on what Congress did in the TVPA.” Id. at 1217-18. Finding no support for a statutory exhaustion requirement in the text or legislative history of the ATCA, the court next assessed whether exhaustion was warranted as a matter of judicial discretion. Ultimately, it concluded that “the balance tips against judicially engrafting an exhaustion requirement onto a statute where Congress has declined to do so, and in an area of international law where the Supreme Court has called for the exercise of judicial caution rather than innovation.” Id. at 1219. Judge Bybee wrote a lengthy dissent expressing the view that exhaustion of local remedies should be required before a U.S. court exercises jurisdiction over ATCA claims. Id. at 1224-46 (Bybee, J., dissenting). Judge Bybee observed that exhaustion “is a well-established principle of international law,” and one the United States “has long recognized.” Id. at 1231. In addition, he referenced various international tribunals and treaties requiring exhaustion. Id. at 1232-33. After discussing whether exhaustion was procedural or substantive, id. at 1233-36, and concluding that the exhaustion requirement was sufficiently well-defined to be easily applied by the courts, id. at 1236-38, Judge Bybee argued that, at the very least, courts “should recognize exhaustion as a prudential principle required by our domestic law [] for the same reasons that we require exhaustion of state, tribal and administrative remedies.” Id. at 1238. C. Rio Tinto I*V Following the decision in Rio Tinto III, Rio Tinto filed a second petition for hearing en banc, which asserted that exhaustion ought to be required. The petition was granted. See Sarei v. Rio Tinto, PLC, 499 F.3d 923 (9th Cir.2007). The case was argued and submitted on October 11, 2007. On December 16, 2008, the en banc court remanded the case “for the limited purpose to determine in the first instance whether to impose an exhaustion requirement on plaintiffs.” Rio Tinto IV, 550 F.3d at 832 (McKeown, J.). Judge McKeown, who authored the plurality opinion, concluded that the Sosa Court’s statement that exhaustion should be considered in an “appropriate” ATCA case indicated that exhaustion ought to be approached “as a prudential principle.” Id. at 827. Juxtaposing “prudential” or judicially-imposed exhaustion with statutory exhaustion requirements, she explained that the former “originated [in the United States] in habeas corpus cases to serve a gatekeeping function,” i.e., to prevent unnecessary conflicts between the federal and state courts, which are “equally bound to guard and protect [constitutional] rights.” Id. at 828 (citation omitted). In this context, and in the tribal court context as well, Judge McKeown stated, the principle of prudential exhaustion is “grounded in principles of comity,” specifically respect for another, potentially conflicting sovereign. Id. at 828-29. Judge McKeown compared the prudential exhaustion requirement in these areas with the exhaustion of local remedies rule that is part of international law, and concluded that the international rule too was motivated by concerns regarding comity. Id. at 829-30. Judge McKeown next discussed the considerations animating exhaustion. She noted that cases like this one “simultaneously appeal to two divergent impulses that have traditionally played out in our country’s international affairs and have been imported into our legal system. The first impulse is to safeguard and respect the principle of comity.... The second is the American role in establishing collective security arrangements that support international institutions, including international tribunals.... Both impulses draw from the recognition that we need a complement to our domestic system, because we are but one member in a community of nations.” Id. at 830-31. The interplay of these concerns informs the prudential exhaustion analysis that the plurality directed be conducted here: “The lack of a significant U.S. ‘nexus’ [in this case] is an important consideration in evaluating whether plaintiffs should be required to exhaust their local remedies in accordance with the principle of international comity.... [On the other hand, s]ome of the [plaintiffs’] claims— torture, crimes against humanity, and war crimes — may implicate matters of ‘universal concern,’ generally described as offenses ‘for which a state has jurisdiction to punish without regard to territoriality or the nationality of the offenders.’ ” Id. at 831 (citations omitted). Observing that the mere existence of universal jurisdiction did not necessarily mean that it should be exercised, Judge McKeown concluded that “in ATS cases where the United States ‘nexus’ is weak, courts should carefully consider the question of exhaustion, particularly — but not exclusively — with respect to claims that do not involve matters of ‘universal concern.’ ” Id. Several members of the en banc panel wrote separately to express their views regarding exhaustion in the ATCA context. Judge Bea, joined by Judge Callahan, concurred in the limited remand, but opined that the ATCA mandated application of a traditional exhaustion analysis in every case. Id. at 833-37 (Bea, J., concurring). Emphasizing the Sosa Court’s explanation that the ATCA “simply provides a forum for hearing existing causes of action that arise under the law of nations,” Judge Bea argued that “it makes more sense to interpret the [ATCA] as incorporating the whole of the law of nations: the rights it grants and the limitations it places on those rights.” Id. at 833; id. at 835 (“But if exhaustion is raised [in a particular case], and so the case is appropriate, it would seem Sosa indicated the Court would consider exhaustion as a requirement. ‘Deference to the political branches,’ on the other hand, is not required, but only ‘possible,’ and then only on a case-specific — i.e., prudential — basis”). Such an exhaustion requirement, he stated, would include standard exceptions for futility or ineffectiveness. Id. at 836 (“In other words, as part of the law of nations’s exhaustion requirement, the futility excuse is also incorporated into the ATS’s statutory exhaustion requirement. Thus, a statutorily required two-step exhaustion analysis would permit Sarei to prosecute his ATS claims without exhausting his local remedies in Papua New Guinea if he can prove that local remedies there are ineffective, unobtainable, unduly prolonged, inadequate, or otherwise futile to pursue”). Echoing Judge Bybee’s dissent in Rio Tinto III, Judge Bea contended that “[a] mandatory requirement of exhaustion of local remedies, except where futile or otherwise unavailable, allows our courts to play the role the ATS intended them to play: an ultimate venue for claimed violations of the law of nations when those claimed violations cannot or will not be cured by the courts of the country in which the injuries occurred.” Id. In the end, seven of the eleven members of the en banc panel declined to impose an exhaustion requirement in every ATCA case. Six, however, agreed to remand the case to this court for the limited purpose of having the court consider whether to impose a prudential exhaustion requirement. Id. at 832 n. 10 (McKeown, J.). II. DISCUSSION A. Prudential Exhaustion in Alien Tort Claims Act Cases Where, as in the case of the ATCA, Congress has not clearly required exhaustion, sound judicial discretion governs. See McCarthy v. Madigan, 503 U.S. 140, 144, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992), superseded by statute as stated in Booth v. Churner, 532 U.S. 731, 732, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). “Judicially-imposed or prudential exhaustion is not a prerequisite to the exercise of jurisdiction, but rather is ‘one among related doctrines — including abstention, finality, and ripeness — that govern the timing of federal-court decisionmaking.’ ” Rio Tinto IV, 550 F.3d at 828 (McKeown, J.) (quoting McCarthy, 503 U.S. at 144, 112 S.Ct. 1081). As noted, in Sosa, the Supreme Court recognized that imposing a prudential exhaustion requirement might be warranted in “appropriate” ATCA cases. Sosa, 542 U.S. at 733 n. 21, 124 S.Ct. 2739. Citing this observation, the Rio Tinto IV plurality held that “[w]here the ‘nexus’ to the United States is weak, courts should carefully consider the question of exhaustion, particularly — but not exclusively — with respect to claims that do not involve matters of ‘universal concern.’” Rio Tinto IV, 550 F.3d at 824 (McKeown, J.). In conducting this analysis, the plurality directed that courts balance two competing interests. Id. at 830. On the one hand, they must “safeguard and respect the principle of comity.” Id.; see also Sosa, 542 U.S. at 761, 124 S.Ct. 2739 (Breyer, J., concurring) (“I would ask whether the exercise of jurisdiction under the ATS is consistent with those notions of comity that lead each nation to respect the sovereign rights of other nations by limiting the reach of its laws and their enforcement”). On the other hand, “[t]he nature of certain allegations and the gravity of the potential violations of international law [ ] trigger the second impulse: [U.S. courts’] historical commitment to upholding customary international law.” Rio Tinto IV, 550 F.3d at 831 (McKeown, J.). In analyzing prudential exhaustion in the ATCA context, therefore, courts must ask questions typically associated with the doctrine of international comity, while at the same time evaluating the universality of plaintiffs’ claims. Following the en banc court’s remand, the court received briefs from the parties and held a hearing at which they presented their respective positions concerning the nature of the inquiry the court had been asked to conduct. The parties disagreed regarding the meaning of the plurality’s direction that the court “determine in the first instance whether to impose an exhaustion requirement on plaintiffs.” Id. at 832. Plaintiffs argued that the court had been directed solely to decide, as a threshold matter, whether a prudential exhaustion requirement should be imposed in this case; they asserted that if the court answered that question yes, it should not conduct the traditional two-step exhaustion analysis but should return the matter forthwith to the circuit court. Focusing on the plurality’s discussion of the standard two-step exhaustion analysis as a “framework for evaluating exhaustion,” Rio Tinto countered that it should be permitted to “justify an exhaustion requirement,” which plaintiffs could rebut by demonstrating the futility of exhaustion. Specifically, it asserted that the court “should weigh the ‘animating considerations’ of U.S. nexus and matters of ‘universal concern’ and determine ‘whether to impose an exhaustion requirement on plaintiffs’ ” only after considering “the availability and adequacy of remedies” in Papua New Guinea. While, based on the language of the plurality opinion, the matter is not free from doubt, the court ultimately concluded that the plurality wished it to determine, as an initial threshold inquiry, whether it was appropriate to impose a prudential exhaustion requirement in this case. It therefore solicited briefs that addressed the factors identified in the plurality opinion as relevant to this determination — i.e., nexus and universality, as informed by general notions of comity — and that refrained from arguing factors relevant in applying the traditional two-step exhaustion analysis — i.e., the availability of local remedies, and whether plaintiffs should be excused from exhausting local remedies because they “are ineffective, unobtainable, unduly prolonged, inadequate, or otherwise futile to pursue,” Rio Tinto IV, 550 F.3d at 833 n. 1 (Bea, J., concurring). The court further determined that, if it concluded a prudential exhaustion requirement should be imposed with respect to any of plaintiffs’ claims, it would conduct the traditional two-step exhaustion analysis before returning the matter to the circuit court so that the appellate court would have a full and complete record in deciding whether plaintiffs should be required to pursue local remedies as to any claim. B. Whether Exhaustion Should be Prudentially Required in This Case 1. Strength of the Nexus Between Plaintiffs’ Claims and the United States In Rio Tinto IV, Judge McKeown made the following observation with respect to the nexus between plaintiffs’ claims and the United States: “This [ease] ... lacks the traditional bases for exercising our sovereign jurisdiction to prescribe laws, namely nationality, territory, and effects within the United States. See Restatement (Third) [Foreign Relations Law of the United States] § 403(2) at cmt. d [ (1987) ] (stating jurisdiction is appropriately exercised with respect to activity outside the state that has or intends to have substantial effect within the state’s territory). The lack of a significant U.S. ‘nexus’ is an important consideration in evaluating whether plaintiffs should be required to exhaust their local remedies in accordance with the principle of international comity.” Rio Tinto IV, 550 F.3d at 831. Examining the accepted bases for jurisdiction to prescribe set forth in section 402 of the Restatement, Rio Tinto adds that plaintiffs’ claims have nothing to do with “conduct that, wholly or in substantial part, takes place within [U.S.] territory,” Restatement § 402(l)(a); that they do not implicate “the status of persons, or interests in things, present within its territory,” id., § 402(1)(b); and that they are not premised on “conduct outside [the U.S.’s] territory that has or is intended to have substantial effect within its territory,” id. § 402(l)(c). Defendants also argue that no U.S. national is a party to this action, such that there might be a basis for exercising jurisdiction to prescribe under section 402(2). Finally, Rio Tinto asserts that plaintiffs’ allegations do not involve “conduct outside [U.S.] territory by persons not its nationals that is directed against the security of the state or against a limited class of other state interests,” Restatement § 402(3). In response, plaintiffs assert that “[a]ny challenge to the sufficiency of nexus in this case must be made with the understanding that every ATS case will involve claims by an alien for a tort committed in violation of the law of nations.” They argue that “[w]hat Rio asks this Court to do is defer to factors articulated in the Restatement in order to determine the wisdom and legitimacy of the ATS itself.” Because the ATCA provides jurisdiction in U.S. courts when (1) an alien sues (2) for a tort (3) committed in violation of the law of nations, plaintiffs contend that “[a]ny threshold requirements suggested for jurisdiction by the Restatement that are in tension with the very language of the ATS cannot seriously be considered.” Given these requirements for stating a claim under the ATCA, plaintiffs maintain that “neither [their] citizenship status [], nor [their] physical location [ ] at the time they suffered violations of customary international law, is determinative on the question of ‘nexus’ to the United States.” Plaintiffs also observe that the Ninth Circuit has held that courts “are constrained by what § 1350 shows on its face: no limitations as to the citizenship of the defendant, or the locus of the injury.” In re Estate of Ferdinand E. Marcos Human Rights Litigation (Trajano v. Marcos), 978 F.2d 493, 500 (9th Cir.1992). Plaintiffs contend that, rather than focusing on the Restatement factors, the nexus inquiry must examine the ties Rio Tinto has to the United States as well as the “strong United States interest in vindicating international human rights violations” committed by companies acting abroad. Plaintiffs argue that Rio Tinto is a multinational mining group that has its largest concentration of assets in the United States; that has operations in at least fifty countries worldwide, including the United States; that owns a California corporation, U.S. Borax; that obtained much of the original funding for its Panguna mining operations in PNG from the Bank of America; and that maintains American Depository Receipt facilities at the Bank of New York. Put differently, plaintiffs argue that the presence of adequate minimum contacts between Rio Tinto and the United States for personal jurisdiction purposes demonstrates that this case has an adequate “nexus” to the United States. The court concludes that “nexus” is most sensibly evaluated in the ATCA context by consideration of a spectrum or range (weakest to strongest) of contacts or connections, not as an absolute. In assessing where on that spectrum a particular ATCA case falls, courts should consider the Restatement factors outlined above, other pertinent connections between the United States and the parties and/or claims, and the scope and purpose of the ATCA itself. Viewed in this manner, the parties’ positions are reconcilable and reflect a variety of factors, all of which are properly considered in testing the strength of the “nexus” between an ATCA plaintiff or his claims and a United States forum. The Rio Tinto IV plurality commented that the nexus between plaintiffs’ claims here and the United States appeared to be weak given that Rio Tinto is a foreign corporation; that the acts in question occurred exclusively on foreign soil; and that the violations alleged were directed at aliens, virtually all of whom have no connection with the United States. See Rio Tinto IV, 550 F.3d at 831 (McKeown, J.) (“The lack of a significant United States ‘nexus’ to the allegations here stimulates the comity response. These claims involve a foreign corporation’s complicity in acts on foreign soil that affected aliens (though at least one of them — Sarei—has enjoyed the status of a lawful permanent resident of this country for some time now)”). Balanced against these factors are Rio Tinto’s connections to the United States. The court agrees with plaintiffs that these merit consideration, although it does not agree that they are dispositive in assessing the strength of the “nexus” between this dispute and an American forum. This is particularly true since most of Rio Tinto’s connections to the United States have nothing to do with plaintiffs’ claims. Plaintiffs represent that the government of PNG and the Autonomous Bougainville Government, now established on that island, have confirmed that they do not oppose the court’s exercise of ATCA jurisdiction over plaintiffs’ claims; they present several letters sent by PNG and Bougainvillean officials to the U.S. ambassador to PNG confirming this fact. These submissions show that, as early as 2003, the PNG government advised the United States that it neither “supported] nor den[ied] the constitutional rights of [its] citizens [to] tak[e] whatever action they deemfed] necessary” with respect to the claims asserted in this suit. In 2005 and again in 2009, PNG officials reaffirmed this position, explaining that the PNG government was “not a party to this case,” and did “not see the case presently before the courts in the U.S. affecting diplomatic and bilateral relations between our two countries.” The government also stated that it did not believe the lawsuit “affect[ed] the peace process on the island of Bougainville.” In a letter to the U.S. ambassador to PNG, the Acting Chief Administrator for the Autonomous Bougainville Government communicated his government’s belief that “the case should be heard and decided by courts in the United States as the citizens have exercised their rights to have the case heard there.” The Administrator noted that “if the case is not heard [in the U.S.], [this] will result in further delays, frustrations and likelihood of prejudices to [the] rights and interests of Plaintiffs and us all.” Finally, he commented that the Bougainville government did “not see the case presently in U.S. Courts adversely affecting any relations between [it] and [the] United States.” The fact that PNG and the Autonomous Bougainville Government do not oppose litigation of plaintiffs’ claims in the United States does not strengthen the nexus between the claims and the United States. Similarly, evidence that the United States no longer opposes litigation in this forum does not change the fact that the nexus between the claims and the United States is weak in terms of nationality, territory, and effects within this country. Rio Tinto argues that, given the fact that “[i]nternational law imposes a duty on all states to provide effective judicial processes and remedies for the violation of norms reflecting matters of universal concern,” comity requires that the United States “respect ... PNG as a co-equal sovereign” and “allow PNG to fulfill its obligation” to adjudicate the claimed human rights violations. It asserts the United States and its courts “cannot ignore [this] obligation [to respect another nation’s sovereignty simply because that nation] ‘consents]’ to a U.S. forum.” Ultimately, Rio Tinto concludes that, since no “government ean[ ] opt out of its sovereign duty to provide remedies for violations of customary international law,” the fact that PNG and the Autonomous Bougainville Government do not oppose litigation of the case in this court does not preclude imposition of a prudential exhaustion requirement or application of the traditional two-step exhaustion analysis. The court agrees with Rio Tinto insofar as it asserts that the consent or non-opposition of PNG and the Autonomous Bougainville Government to having the litigation proceed in this forum does not strengthen the nexus between plaintiffs’ claims and the United States. To the extent Rio Tinto suggests that comity considerations and international law obligations require the United States to defer to another sovereign’s initial adjudication of claims involving matters of universal concern, however, it adopts the position taken by Judges Bybee and Bea in their respective opinions. Seven of the eleven judges who were members of the Rio Tin-to TV en banc court rejected imposing a mandatory exhaustion requirement, however, and the plurality directed that the court “consider” whether exhaustion ought to be required in this action as a prudential matter. Given the outcome of the en banc proceedings, Rio Tinto’s argument that exhaustion is required is not persuasive. In sum, weighing the Restatement factors, the nature of Rio Tinto’s contacts with the United States, and the relationship between the United States and plaintiffs and their claims, the court agrees with the en banc plurality that the nexus between plaintiffs’ claims and the United States is weak. 2. Matters of “Universal Concern” “In ATS cases where the United States ‘nexus’ is weak, courts should carefully consider the question of exhaustion, particularly — but not exclusively — with respect to claims that do not involve matters of ‘universal concern.’ ” Rio Tinto IV, 550 F.3d at 831 (McKeown, J.). Matters of “universal concern” are offenses “for which a state has jurisdiction to punish without regard to territoriality or the nationality of offenders.” Kadic v. Karadzic, 70 F.3d 232, 240 (2d Cir.1995); see also Restatement § 404 (“A state has jurisdiction to define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern ... even where none of the bases of jurisdiction indicated in § 402 [nationality, territory, and in-country effects] is present”). As the second step in evaluating whether exhaustion of some or all of plaintiffs’ claims ought to be required as a prudential matter, therefore, the court examines the ATCA claims pleaded in the first amended complaint to ascertain whether they involve matters of “universal concern.” In doing so, the court finds instructive, but not controlling, the list of offenses denominated matters of universal concern in section 404 of the Restatement. Section 404 specifically states that the list set forth therein is not exhaustive. See Restatement § 404 (“A state has jurisdiction to define and prescribe punishment for certain offense recognized by the community of nations as of universal concern, such as ...” (emphasis added)); id., cmt. a (“Universal jurisdiction for additional offenses is provided by international agreements ... ”). Moreover, although evaluating whether to require prudential exhaustion — as envisioned by the plurality — is a separate inquiry from subject matter jurisdiction under the ACTA, neither the statute itself nor cases interpreting it limit the claims that are actionable under the ATCA to the matters of universal concern identified in section 404. Therefore, while the Restatement offers some guidance in evaluating the second prong of the plurality’s prudential exhaustion test, it is not the sole source to which the court looks in assessing whether the claims asserted in this suit implicate matters of “universal concern.” Other useful reference points include Judge Reinhardt’s observation that “heinous offenses like genocide, crimes against humanity, and war crimes” fall within ATCA jurisdiction because they violate specific “ ‘norm[s] of international character accepted by the civilized world’ ” that all nations have an interest in remedying. Rio Tinto IV, 550 F.3d at 845 (Reinhardt, J., dissenting) (citing Sosa, 542 U.S. at 742, 124 S.Ct. 2739 (Breyer, J., concurring)). All relevant sources indicate that, while the two inquiries are not coextensive, evaluating whether a claim involves a matter of “universal concern” for purposes of deciding whether to impose a prudential exhaustion requirement overlaps to some extent with the analysis required to ascertain whether a claim falls within ATCA jurisdiction, i.e., whether it is sufficiently “specific, universal, and obligatory.” In re Estate of Marcos Human Rights Litigation (Hilao v. Estate of Marcos), 25 F.3d 1467, 1475 (9th Cir.1994). Although the primary focus of this prong of the prudential exhaustion analysis is universality, the specificity of a norm, and the extent to which nations feel obliged to follow it, inform a decision regarding its universality. It is thus appropriate to look to ATCA jurisprudence, “the works of jurists on public law, [ ] the general practice of nations, [and] court decisions that discuss and enforce international law,” Rio Tinto I, 221 F.Supp.2d at 1131 (citations omitted), as well as the types of claims listed in section 404 of the Restatement, in evaluating whether a particular claim involves matters of “universal concern.” Because a court evaluating the universality of a particular norm in the ATCA context must be sensitive to that norm “as it has evolved and exists among the nations of the world today,” Kadic, 70 F.3d at 238 (citing Filartiga v. Pena-Irala, 630 F.2d 876, 887 (2d Cir.1980)), the court examines each of plaintiffs’ claims in turn to ascertain whether it can currently be considered “universal.” (a) Crimes Against Humanity Plaintiffs’ first ATCA claim alleges that Rio Tinto “acted jointly and willfully with PNG and the government of Australia to institute a blockade of Bougainville,” which constituted “genocide because it foreseeably resulted in the killing of natives, caused serious bodily harm, [and] was deliberately calculated to destroy plaintiffs and their way of life.” Plaintiffs also assert that the “instigation of the blockade and denial of medical treatment and other necessities that caused severe pain and suffering, as well as death, constitute acts of official torture.” Both before and after Sosa, federal courts have recognized claims for certain crimes against humanity, including genocide and torture, as sufficiently universal to give rise to jurisdiction under the ATCA. See, e.g., Bowoto v. Chevron Corp., 557 F.Supp.2d 1080, 1084-85 (N.D.Cal.2008) (“The case at bar [ ] considers whether common law claims of torture and summary execution can be pled against corporations under the ATS.... The Court finds that plaintiffs’ claims for torture and summary execution may be brought under the ATS ... ”); Mujica v. Occidental Petroleum Corp., 381 F.Supp.2d 1164, 1183 (C.D.Cal.2005) (finding that a claim alleging crimes against humanity, based on the forced displacement of civilians, gave rise to ATCA jurisdiction); see also Kadic, 70 F.3d at 239-42 (“The Executive Branch has emphatically restated in this litigation its position that private persons may be found liable under the Alien Tort Act for acts of genocide, war crimes, and other violations of international humanitarian law.... In the aftermath of the atrocities committed during the Second World War, the condemnation of genocide as contrary to international law quickly achieved broad acceptance by the community of nations.... [FJrom its incorporation into international law, the proscription of genocide has applied equally to state and non-state actors”); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 791 n. 20 (D.C.Cir.1984) (Edwards, J., concurring) (“On the basis of international covenants, agreements and declarations, commentators have identified at least four acts that are now subject to unequivocal international condemnation: torture, summary execution, genocide and slavery” (citations omitted)). Genocide, moreover, is one of the matters of “universal concern” identified in section 404 of the Restatement, and both genocide and crimes against humanity are among the “heinous crimes” mentioned by Judge Reinhardt in his dissent. As pled, therefore, plaintiffs’ first claim for crimes against humanity amounting to genocide and torture implicates matters of universal concern. (b) War Crimes Plaintiffs’ second claim alleges that Rio Tinto’s actions during the hostilities that occurred in Bougainville violated the international law of war and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Article III. War crimes are one of the matters of “universal concern” listed in section 404 of the Restatement, and federal courts have long recognized that alleged violations of the law of war give rise to an actionable ATCA claim. See, e.g., Vietnam Ass’n for Victims of Agent Orange v. Dow Chemical Co., 517 F.3d 104, 116 (2d Cir.2008) (“While not exhaustive, the list of principles that may be said to have ‘ripened into universally accepted norms of international law’ [] includes the proscriptions against piracy, slave trade, attacks on or hijacking of aircraft, genocide, and war crimes” (citing Kadic and Restatement § 404)); Kadic, 70 F.3d at 242-43 (“After the Second World War, the law of war was codified in the four Geneva Conventions, which have been ratified by more than 180 nations, including the United States []. Common article 3, which is substantially identical in each of the four Conventions, applies to ‘armed conflict[s] not of an international character.’ ... Thus, under the law of war as codified in the Geneva Conventions, all ‘parties’ to a conflict ... are obliged to adhere to these most fundamental requirements of the law of war. The liability of private individuals for committing war crimes has been recognized since World War I and was confirmed at Nuremberg ... and remains today an important aspect of international law. [ ] The District Court has jurisdiction pursuant to the Alien Tort Act over appellants’ claims of war crimes and other violations of international humanitarian law” (footnotes and citations omitted)); Jane Doe I v. Islamic Salvation Front (FIS), 993 F.Supp. 3, 8 (D.D.C.1998) (“This court concludes that the acts of the FIS alleged by Plaintiffs are proscribed by international law against both state and private actors, as evidenced by Common Article 3. Accordingly, Plaintiffs have properly alleged subject matter jurisdiction under the ATCA”). Plaintiffs’ second claim, therefore, also involves a matter of “universal concern.” (c) Environmental Tort Claims The first amended complaint includes two distinct environmental tort claims: the third claim alleges violations of the rights to life, health, and security while the sixth alleges violations of international environmental rights. Plaintiffs allege that the right to life “is specifically applicable to cases involving severe environmental harm”; that the right to health “constitutes a norm of customary international law”; and that international law recognizes “that harm which threatens human life or health necessarily implicates a violation of the right to security of the person.” They assert that Rio Tinto violated their rights to life and health “by appropriating land owned by indigenous people for the purpose of opening a mine, [and by] knowingly emitting and depositing volatile and highly toxic mine waste onto the land and into the water, thus destroying rivers and land that provided a way of life for the native people.” In Rio Tinto I, the court concluded that, although various international law treaties and/or agreements reference the rights to life and health, and some address the impact environmental degradation has on those rights, there was insufficient international consensus regarding the type of conduct that violated the rights for purposes of ACTA jurisdiction. Rio Tinto I, 221 F.Supp.2d at 1158. Additionally, the court considered relevant in assessing the universality of the rights the fact that the United States had refused to ratify at least one of the treaties that recognize them. Id. at 1157-58. Ultimately, the court was unable to conclude that the rights to life and health were rights that other nations universally recognized could be violated through conduct harmful to the environment. Id. at 1158 (citing Aguinda v. Texaco, Inc., No. 93 Civ. 7527(VLB), 1994 WL 142006, *7 (S.D.N.Y. Apr. 11, 1994) (“Not all conduct which may be harmful to the environment, and not all violations of environmental laws, constitute violations of the law of nations”)); see also, e.g., Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 167 (5th Cir.1999) (rejecting plaintiffs’ reliance on “several sources of international environmental law to show that the alleged environmental abuses caused by Free-port’s mining activities are cognizable under international law,” the court explained that “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 amici 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”). Since Rio Tinto I, federal courts have continued to hold that, at present, claims that environmental damage or destruction has injured or threatened individuals’ rights to life and health are not sufficiently specific to give rise to ATCA jurisdiction. Courts so holding have recognized that this lack of specificity, and nations’ differing interpretations of the conduct that violates the rights, undercuts any claim that they are universal. This is because nations cannot universally subscribe to a principle that is without concrete content. See, e.g., Bowoto, 557 F.Supp.2d at 1095 (“The right to life, liberty and security of person are widely recognized as fundamental human rights. However, these international instruments do not purport to define these rights nor is there ATS jurisprudence upholding or defining such claims”); Kiobel v. Royal Dutch Petroleum Co., 456 F.Supp.2d 457, 467 (S.D.N.Y.2006) (“Defendants argue that there is no particular or universal understanding of the civil and political rights [to life, liberty, security and association] covered by Plaintiffs’ claim, and thus, pursuant to Sosa, these ‘rights’ are not actionable under the ATS. [] The Court agrees”); In re Agent Orange Product Liability Litigation, 373 F.Supp.2d 7, 129 (E.D.N.Y.2005) (“In the developing area of international environmental law, the United States and other nations have tended to treat protection of the environment on an ad-hoc, situation-by-situation and case-by-case basis” (citations omitted)); see also Flores v. Southern Peru Copper Corp., 414 F.3d 233, 254-55 (2d Cir.2003) (holding, in a suit where Peruvian residents alleged that pollution from an American mining company’s operations had caused severe, deadly lung disease, that general statements regarding the rights to life and health “are boundless and indeterminate. They express virtuous goals understandably expressed at a level of abstraction needed to secure the adherence of States that disagree on many of the particulars regarding how actually to achieve them.... For the foregoing reasons, plaintiffs have failed to establish the existence of a customary international law ‘right to life’ or ‘right to health’ ”); id. at 266 (“Because plaintiffs have failed to submit evidence sufficient to establish that intranational pollution violates customary international law, the District Court properly granted defendant’s motion to dismiss”); Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F.Supp.2d 289, 340 (S.D.N.Y.2003) (“[I]t is well-established that environmental damage, without more, generally does not violate international law” (citations omitted)). As a result, the court concludes that plaintiffs’ third claim that Rio Tinto’s alleged environmental destruction of Bougainville violated their rights to life, health, and security of the person is based on international law norms that have not, as yet, achieved the status of matters of “universal concern.” Plaintiffs’ sixth claim alleges that international law “has recognized a minimum right to a safe environment as a customary-norm.” In Rio Tinto I, the court concluded that some of the authorities cited in the complaint as support for this claim, particularly the Rio Declaration and the Stockholm declaration, undermined plaintiffs’ position that defendants’ conduct violated recognized international law. Rio Tinto I, 221 F.Supp.2d at 1159. It also evaluated the additional bases for the environmental tort claims that plaintiffs had raised in their opposition to defendants’ motion to dismiss. Id. at 1160. These included the “principle of sustainable development,” a concept the court found insufficiently “specific, universal, and obligatory” to support a claim for violation of the law of nations. It noted, in fact, that plaintiffs’ expert conceded the principle might be “ ‘too broad a concept to be legally meaningful.’ ” Id. The court next considered whether plaintiffs’ allegations stated a claim for violation of the United Nations Convention on the Law of the Sea (“UNCLOS”), and whether, if so, such a claim fell within its jurisdiction under the ACTA. Ultimately, the court held that “[bjecause UNCLOS reflects customary international law, plaintiffs may base an ATCA claim upon it.” Id. at 1162. While the UNCLOS may reflect customary international law that is specific and obligatory, the court concludes — for purposes of applying the second prong of the prudential exhaustion analysis — that it is not a “matter of universal concern” in the same manner that jus cogens norms such as genocide, torture or crimes against humanity are. This conclusion is bolstered by the fact that the United States has signed but not yet ratified UNCLOS. For these reasons, the court finds that plaintiffs’ international environmental rights claims, including those premised on the UNCLOS, involve norms “where aspiration has not yet ripened into obligation,” Alvarez-Machain v. United States, 331 F.3d 604, 620 (9th Cir.2003), reversed on other grounds sub. nom. Sosa v. AlvarezMachain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). It thus concludes that the claims do not implicate matters of “universal concern.” (d) Racial Discrimination Plaintiffs’ fourth ATCA claim for racial discrimination alleges that Rio Tinto “viewed the people of Bougainville as inferior due to their color and culture and, therefore, intentionally violated their rights.” It also asserts that Rio Tinto had “a deliberate policy of systematic racial discrimination against plaintiffs.” Plaintiffs contend that, because defendants acted under color of law in concert with the PNG government, their “discriminatory acts [ ] constitute governmental action.” As the court noted in Rio Tinto I, “it is well-settled that racial discrimination is a violation of the law of nations.” Many courts have held, in fact, that discrimination “violates a jus cogens norm.” Rio Tinto I, 221 F.Supp.2d at 1152 (citations omitted). Racial discrimination is proscribed by international law only when committed by state officials or under color of law, however. Id. at 1153 (citing Restatement § 702 (“[a] state violates international law if, as a matter of state policy, it practices, encourages, or condones ... systematic racial discrimination”)); see also, e.g., Bigio v. Coca-Cola Co., 239 F.3d 440, 448 (2d Cir.2000) (“However reprehensible, [ ] racial or religious discrimination ... are included only in [§ 702] of the Restatement, which describe[s] conduct that violates international law when undertaken by a state actor” (citations omitted)); In re South African Apartheid Litigation, 617 F.Supp.2d 228, 250 (S.D.N.Y.2009) (“Racial discrimination is a violation of customary law when it is practiced systematically as a matter of state policy” (footnotes and internal quotations omitted)). While the Bigio court held that “neither racial or religious discrimination in general nor the discriminatory expropriation of property in particular is listed as an act ‘of universal concern’ in [section] 404 or is sufficiently similar to the listed acts for us to treat them as though they were incorporated into [section] 404 by analogy,” Bigio, 239 F.3d at 448, it did so in the context of concluding that a private company could not be sued for discrimination under the ACTA when it had not acted in concert with state officials. See also Iwanowa v. Ford Motor Co., 67 F.Supp.2d 424, 444 (D.N.J.1999) (“The Kadic Court further noted that section 702 [of the Restatement] ... identifies violations that are actionable when committed by a state, whereas section 404 of the Restatement lists a more limited category of violations of universal concern”). Although the plurality opinion directed the court to weigh nexus against the universality of the concerns underlying plaintiffs’ claims in assessing whether to impose a prudential exhaustion requirement, Rio Tinto IV, 550 F.3d at 824, 831, and although it cited section 404 of the Restatement as defining matters of “universal concern,” id., for the reasons stated earlier, the court does not believe that the plurality intended that the definition set forth in section 404 strictly control the prudential exhaustion analysis. The court is mindful, moreover, of the panel’s decision in Rio Tinto III, which held that “[a]cts of racial discrimination are violations of jus cogens law.” Rio Tinto III, 487 F.3d at 1209 (citing Sider man de Blake v. Republic of Argentina, 965 F.2d 699, 717 (9th Cir.1992), for the proposition that “the Foreign Relations Law Restatement ‘identif[ies] jus cogens norms prohibiting ... systematic racial discrimination’ ”); see Siderman de Blake, 965 F.2d at 715 (“Courts seeking to determine whether a norm of customary international law has attained the status of jus cogens ... must ... determine whether the international community recognizes the norm as one ‘from which no derogation is permitted’ ”); Presbyterian Church of Sudan, 244 F.Supp.2d at 306 (“The Amended Complaint is rife with accusations which, if proven true, would constitute behavior manifestly in violation of the most basic rules of international law and, indeed, of civilized conduct. Such acts violate peremptory norms, or jus cogens.... Violations of jus cogens norms constitute violations of obligations owed to all (jerga omnes ’). In other words, states may exercise universal jurisdiction over acts committed in violation of jus cogens norms”). Because racial discrimination violates a jus cogens norm, the court concludes that it should be treated as a matter of universal concern for purposes of evaluating whether to impose a prudential exhaustion requirement with respect to plaintiffs’ fourth ACTA claim. (e) Cruel, Inhuman, and Degrading Treatment Plaintiffs’ fifth claim for cruel, inhuman, and degrading treatment (“CIDT”) asserts that, by subjecting plaintiffs to inhumane treatment causing “lasting emotional, psychological and physical trauma,” Rio Tinto violated Article 16 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). Specifically, plaintiffs alleged that “Rio’s blockage, massive environmental destruction, and seizure of property for Rio’s purposes constitutes cruel, inhuman and degrading treatment.” In its original motion to dismiss, Rio Tinto did not argue that plaintiffs’ CIDT claim should be dismissed. Examining its subject matter jurisdiction to hear the claim sua sponte, the court noted that it was not based on allegations of torture and that plaintiffs had not “articulated a specific, universal and obligatory norm underlying th[e] claim.” Rio Tinto I, 221 F.Supp.2d at 1163 n. 190 (citing Forti v. Suarez-Mason, 672 F.Supp. 1531, 1543 (N.D.Cal.1987), superseded by statute on other grounds as stated in Papa v. United States, 281 F.3d 1004 (9th Cir.2002); Forti v. Suarez-Mason, 694 F.Supp. 707, 712 (N.D.Cal.1988); and Hilao v. Estate of Marcos, 103 F.3d 789, 794-95 (9th Cir.1996)). More recently, however, federal courts have begun to recognize that “there exists a universal, definable, and obligatory prohibition against cruel, inhuman, or degrading treatment or punishment,” and that CIDT “is therefore actionable under the ATCA.” Aldana v. Del Monte Fresh Produce, N.A., Inc., 452 F.3d 1284, 1285 (11th Cir.2006) (Barkett, J., dissenting). See also, e.g., Doe v. Qi, 349 F.Supp.2d 1258, 1321-22 (N.D.Cal.2004) (stating that CIDT has been condemned by numerous sources of international law and holding that where the conduct alleged in a particular case to constitute CIDT is sufficiently egregious, it gives rise to jurisdiction under the ATCA); Tachiona v. Mugabe, 234 F.Supp.2d 401, 437 (S.D.N.Y.2002) (“Despite the absence of a distinct definition for what constitutes cruel, inhuman or degrading treatment, various authorities and international instruments make clear that this prohibition is conceptually linked to torture by shades of misconduct discernible as a continuum.... That it may present difficulties to pinpoint precisely where on the spectrum of atrocities the shades of cruel, inhuman, or degrading treatment bleed into torture should not detract from what really goes to the essence of any uncertainty: that, distinctly classified or not, the infliction of cruel, inhuman or degrading treatment by agents of the state, as closely akin to or adjunct of torture, is universally condemned and renounced as offending internationally recognized norms of civilized conduct”). Acknowledging that there “is no widespread consensus regarding the elements of cruel, inhuman and degrading treatment,” one California district court has concluded that CIDT claims “may be brought under ATS if the specific conduct alleged by the plaintiffs has been universally condemned as cruel, inhuman, or degrading.” Bowoto, 557 F.Supp.2d at 1093-94 (citing Qi, 349 F.Supp.2d at 1322; and Xuncax v. Gramajo, 886 F.Supp. 162, 187 (D.Mass.1995)). “Cruel, inhuman, or degrading treatment or punishment is defined as acts which inflict mental or physical suffering, anguish, humiliation, fear and debasement, which fall short of torture.” Aldana, 452 F.3d at 1285 n. 1 (Barkett, J., dissenting) (citing the CAT). The principal difference between torture and CIDT is “the intensity of the suffering inflicted.” Restatement, § 702, Reporter’s Note 5 (quoting Ireland v. United Kingdom, 25 Pub. Eur. Ct. Hum. Rts., ser. A para. 167 (1978)); see also Wiwa v. Royal Dutch Petroleum Co., No. 96 CIV. 8386(KMW), 2002 WL 319887, *8 (S.D.N.Y. Feb. 28, 2002) (“International law considers ‘cruel, inhuman or degrading treatment’ as a general category of prohibited conduct of which ‘torture is at the extreme end’ ”). Here, plaintiffs’ CIDT claim is based on a wide range of conduct, including seizure of Bougainvilleans’ property and displacement from their homes, environmental damage, and the Rio Tinto’s alleged role in the blockade of the island during the civil war. Some of this conduct may implicate matters of universal concern (e.g., the medical blockade), while some does not (e.g., damage to the environment). The CIDT claim that plaintiffs have asserted is thus in many respects different from those that courts have found “closely akin to ... torture,” and based on conduct that is “universally condemned and renounced as offending internationally recognized norms of civilized conduct.” Tachiona, 234 F.Supp.2d at 437; see id. at 438 (holding that Zimbabwean ruling party’s public dragging of dead victims’ bodies before their homes, kin and neighbors, constituted CIDT because it was an affront to their human dignity and caused their families severe emotional distress); see also In re South African Apartheid Litigation, 617 F.Supp.2d at 264 (holding that plaintiffs had adequately alleged a CIDT claim under an aiding and abetting theory against automobile companies’ security personnel who “provided information about anti-apartheid activists to the South African Security Forces, facilitated arrests, provided information to be used by interrogators, and even participated in interrogations”). As noted, several courts have stated that CIDT is actionable “if the specific conduct alleged by the plaintiffs has been universally condemned as cruel, inhuman, or degrading.” Bowoto, 557 F.Supp.2d at 1093—94; Qi, 349 F.Supp.2d at 1321-22 (stating that where the conduct alleged in is sufficiently egregious, a CIDT claim is actionable). Because multiple elements of plaintiffs’ CIDT claim do not involve conduct that has been universally condemned as cruel, inhuman, or degrading, the court concludes that the specific CIDT claim plaintiffs assert does not exclusively involve matters of universal concern. (f) Consistent Pattern of Gross Violations of Human Rights Plaintiffs’ final ACTA claim alleges that the repeated human rights abuses in which Rio Tinto engaged violated an international law norm forbidding “infringements of recognized human rights that are not violations when committed singly or sporadically.” Specifically, plaintiffs contend that “Rio’s consistent abuse of [plaintiffs], both in terms of destruction of the environment, its racial discrimination and its participation in the military efforts to reopen the mine, violate international law.” Like their claim that Rio Tinto caused environmental damage that violated their rights to life and health, plaintiffs’ allegation that the company engaged in a “consistent pattern” of human rights violations suffers from a lack of specificity that undermines the notion that there is a universal consensus condemning the conduct. Although neither party argued the question in Rio Tinto I, the court recognized as much, observing that “plaintiffs’ claim for gross violations of human rights is not based on any specific provision of international law that is universally recognized.” Rio Tinto I, 221 F.Supp.2d at 1163 n. 190. Post-Sosa jurisprudence, though limited, appears to affirm this conclusion. See, e.g., Bowoto, 557 F.Supp.2d at 1096 (“Plaintiffs appear to concede that their claim of consistent patterns of gross violations of human rights cannot survive scrutiny after Sosa and instead choose to focus on their independent causes of action ... Accordingly, the court grants defendan