Full opinion text
DUVAL, District Judge. Before the court is a motion to dismiss Plaintiff Tom Beanal’s (“Beanal”) claims against Freeport-McMoRan, Inc. and Free-port>-MeMoRan Copper & Gold, Inc. (collectively “Freeport”), which motion was heard with oral argument on October 23, 1996. Having reviewed the pleadings, the memoranda, and the applicable law, the court finds as follows for the reasons set forth below: (1) Plaintiff has standing to bring claims on his own behalf for cultural genocide of the Amungme tribe, certain human rights violations, and environmental claims, but lacks standing to bring claims on behalf of others for summary execution and disappearances; (2) Plaintiff has failed to state a claim for genocide in violation of the law of nations, pursuant to the Alien Tort Statute; (3) Plaintiff has failed to allege state action as required under the Alien Tort Statute because he failed to allege that Freeport acted under color of Indonesian law; (4) The Torture Victim Protection Act does not supersede or impliedly repeal the causes of action under the Alien Tort Statute for torture and extrajudicial kiEing committed in violation of the law of nations; (5) The Torture Victim Protection Act does not apply to corporations; and (6) Plaintiff has faded to state a claim for an environmental tort in violation of the law of nations. The Parties Plaintiff Tom Beanal (“Beanal”) is a resident of Tamika, Irian Jaya within the Repub-Ec of Indonesia. He is a leader of the Amungme Tribal Counsel of Lambaga Adat Suku Amungme (LEMASA). He filed suit against Freeport on April 29, 1996, individually and on behalf of all other similarly situated. Plaintiff filed his first amended complaint on May 16, 1996. Since no class has been certified, Beanal is the lone plaintiff at this stage. Defendants Freeport-McMoRan, Inc. and Freeport-McMoRan Copper & Gold, Inc. are Delaware corporations headquartered in New Orleans, Louisiana. Freeport owns an Indonesia-based subsidiary named P.T. Free-port Indonesia (“PT-FI”). Freeport operates the “Grasberg Mine,” an open pit copper, gold and süver mine situated in the Jayawijaya Mountain in Irian Jaya, Indonesia. The mine allegedly encompasses approximately 26,400 square küometers. The Complaint Beanal’s first amended complaint aEeges that Freeport has committed environmental torts, human rights abuses, and cultural genocide. Beanal states that the court has jurisdiction over this ease based on diversity jurisdiction, pursuant to 28 U.S.C. § 1332 (“ § 1332”), the AHen Tort Statute, 28 U.S.C. § 1350 (“ § 1350”), and the Torture Victim Protection Act of 1991, sec. 1, et seq., 28 U.S.C. § 1350 note. Freeport’s motion to dismiss focuses solely on the latter basis for jurisdiction under § 1350, and does not mention Plaintiffs diversity based claims. Accordingly, the court does not address those claims for damages and specific rehef, if any, based on diversity jurisdiction. Since the prerequisites for diversity jurisdiction appear to have been satisfied and are not contested, this court has subject matter jurisdiction so long as Plaintiff can state at least one claim for rehef. The court could exercise supplemental jurisdiction over other claims against Freeport. 28 U.S.C. § 1367. The court reviews the claims made pursuant to § 1350 to determine if a cause of action exists. The current view of § 1350 is that it grants a federal cause of action as weE as a federal forum in which to assert the claim. Xuncax v. Gramajo, 886 F.Supp. 162, 179 (D.Mass.1995) (citations omitted). The Fifth Circuit has acknowledged the generally held view that section 1350 is appropriately used by individuals asserting claims for violation of the international law of human rights. De Sanchez v. Banco Central de Nicaragua, 770 F.2d 1385, 1396, n. 16 (5th Cir.1985). Freeport appropriately moved to dismiss for failure to state a cause of action, under Rule 12(b)(6) of the Federal Rules of Procedure, rather than for lack of subject matter jurisdiction, under Rule 12(b)(1). Fed. R. Civ. Proc. 12(b)(1) and (6). Summary of Freeport’s Bases for Dismissal Freeport asserts numerous reasons for the court to dismiss the claims for human rights violations and the environmental claims. First, Freeport argues that Beanal lacks standing to bring human rights claims in his own behalf or on behalf of others. As to the human rights claims asserted pursuant to the Alien Tort Statute, Freeport argues: (1) The Alien Tort Statute does not provide a private right of action; (2) Freeport is not a state actor; and (3) The TVPA supersedes the Alien Tort Statute for claims of torture and extrajudicial killings. As to the human rights violations asserted under the Torture Victim Protection Act (“TVPA”), Freeport argues that Beanal has faüed to state a claim because: (1) The TVPA does not apply to corporations; (2) Beanal has not alleged that Freeport acted under color of foreign law; (3) Beanal failed to exhaust local remedies. Freeport asserts five bases for dismissal of claims for international environmental torts brought under § 1350: (1) Beanal lacks standing to bring the environmental claims; (2) Beanal has failed to state a claim because environmental practices do not violate the law of nations; (3) The act of state doctrine bars Beanal’s claims; (4) The local action doctrine mandates dismissal; and (5) The claims should be dismissed for failure to join an indispensable party, namely, the Republic of Indonesia. The court discusses each issue in turn. Standard for Motion to Dismiss Freeport filed a Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. The court confirmed by Minute Entry that it would not consider any matters outside the pleadings in deciding this motion. Minute Entry of Oct. 17, 1996, Record, Doc. No. 95. Further, the plaintiff cannot amend his complaint by briefs submitted in opposition to the motion to dismiss. Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir.1984) cert. denied, 470 U.S. 1054, 105 S.Ct. 1758, 84 L.Ed.2d 821 (1985); Jojola v. Chavez, 55 F.3d 488, 494 (10th Cir.1995). Beanal’s opposition memorandum presented summaries of the allegations which varied slightly from those contained in his amended complaint which the court disregards. In deciding a Rule 12(b)(6) motion, the court must accept all material allegations of the complaint as true and construe them in favor of the non-moving party. Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir.1995). The court may only grant dismissal if it appears beyond doubt that the plaintiff can prove no facts in support of his claim which would entitle him to relief. Id., citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). The court is not required to “conjure up unpled allegations” to save a complaint. Systems Contractors Corporation v. Orleans Parish School Board, et al., 1996 WL 547414, *1, (E.D.La. Sept. 24, 1996), citing Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir.1988). The court may treat a Rule 12(b)(6) dismissal motion as a motion for a more definite statement, even if the motion is not so styled. See Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1378, at 634 (1991); Forti v. Suarez-Mason, 672 F.Supp. 1531, 1541 (D.C.Cal.1987), reconsidered on other grounds, 694 F.Supp. 707 (N.D.Cal.1988). This would be appropriate, for example, in order for Plaintiff to state specific facts on which he bases his individual allegations of human rights violations. Forti 672 F.Supp. at 1541. This way, the court can remain true to the notice pleading permitted under the federal rules and at the same time accurately assess the facts pled. A. STANDING Beanal stands as the lone plaintiff in this case since no class has been certified. Uniform Louisiana Local Rule 1.12B provides that a plaintiff must move for class certification within 90 days after filing a complaint, unless the period is extended for good cause by motion. Plaintiff Beanal filed this action on April 29,1996 and moved for an extension of time within which to seek class certification on August 1, 1996, approximately four days after the ninety-day period had lapsed. Plaintiffs motion for more time was denied on August 6,1996 and he did not seek reconsideration of said denial. Record, Doe. No. 56. Beanal has standing to assert claims on his own behalf. Beanal does not purport to be an organizational representative. Beanal identifies himself as “a leader of the Amungme Tribal Council Lembaga Musyawarah Adat Suku Amungme (‘LEMASA’),” but does not appear to be suing on behalf of “LEMASA” since he sued “individually and on behalf of all other similarly situated class members (Indigenous People of Irian Jaya).” Unlike Beanal, LEMASA is not listed as a party and the complaint does not indicate that LEMASA is bringing suit. Furthermore, Beanal has not alleged facts which would entitle him to bring claims on behalf of a third party. Typically, there are three instances in which third party standing is permissible: (1) where individuals can represent the interests of parties who are unlikely to be able to represent their own interests; (2) where there is a close relationship between the advocate and the third party; and (3) where a statute is challenged as being unconstitutionally overbroad. Erwin Chemerinsky, Federal Jurisdiction § 2.3.4 (2d.l994) (hereinafter “Federal Jurisdiction”). Beanal has not alleged facts that would entitle him to claim any of these exceptions to the general rule against third party standing. By definition, claims for disappearance and summary execution are based on harm to a third party. Xuncax v. Gramajo, 886 F.Supp. 162, 189 (D.Mass.1995). Section 1350 is silent concerning a plaintiffs standing to bring suit based on an injury to another. Id. It is generally assumed that where Congress is silent as to such a detail, federal courts borrow from state law, unless its application would defeat the purpose of the federal statute. Id. at 190. In Xuncax the court determined who could bring a claim under § 1350 for summary execution and disappearances by following the approach used by other courts in determining the statute of limitations applicable under § 1350. Id. “To determine whether to apply federal or state limitations period, the Court must first identify the closest analogies under both federal and state law....” Id. The Xuncax court found that the statute most analogous to § 1350 was the Torture Victim Protection Act, which provides that the victim’s “legal representative” or “any person who may be a claimant in an action for wrongful death,” may recover based on an extrajudicial killing. The House Report on the TVPA states that “[cjourts look to state law for guidance as to which parties would be proper wrongful death claimants.” H.R.Rep. No. 256, 102nd Cong., 1st Sess. 87 (1991). This court is also persuaded that the Torture Victim Protection Act is most analogous to § 1350. Accordingly, the court turns to Louisiana law to determine who can bring suit under the Alien Tort Statute. Louisiana law does not permit the bringing of a wrongful death action by a non-relative of the victim. Louisiana Civil Code Article 2315.2 lists the following surviving relatives of the deceased who may bring a wrongful death action: spouse, children, father, mother, brothers, sisters. La. C.C. Art. 2325.2. The court finds that Beanal, who has not identified himself as a relative of any victim, would be unable to bring a wrongful death action in Louisiana, and therefore lacks the standing to sue on behalf of victims of disappearance or summary execution under § 1350. To meet the standing requirements under Article III, the Fifth Circuit requires that plaintiff demonstrate two things: First, that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant, and [2] second, a causal connection between the injury and the conduct such that the injury is “likely to be redressed by a favorable decision. The Supreme Court has recognized that injuries to a plaintiff’s aesthetic, conservational and recreational interests are sufficient to meet the first requirement of Article III standing.” International Primate Protection League v. Administrators of the Tulane Educational Fund, 895 F.2d 1056, 1058 . (5th Cir.1990) (citations omitted), reversed on other grounds, 500 U.S. 72, 111 S.Ct. 1700, 114 L.Ed.2d 134 (1991). For purposes of determining standing on a motion to dismiss, the court “presumes that general allegations embrace those specific facts that are necessary to support the claim.” Lujan v. National Wildlife Federation, 497 U.S. 871, 889, 110 S.Ct. 3177, 3189, 111 L.Ed.2d 695 (1990). The Lujan Court acknowledged that the burden of meeting the standing requirement on a motion to dismiss is considerably less onerous than on a motion for summary judgment. Id. In light of Beanal’s status as the sole named plaintiff, the court finds that he has standing to bring claims on his own behalf for certain human rights violations, genocide and environmental torts. Beanal alleges in his complaint that he has been personally injured by certain human rights abuses and environmental practices. The court finds that Beanal has standing to assert those claims for which he alleges an individualized injury. Beanal requests a judgment for money damages as well as specific relief, either of which would redress the harm caused by Freeport for its alleged wrongdoing, if any. Disregarding those allegations which appear to have been made on behalf of other putative class members, the following specific injuries shall be regarded as having been asserted by Plaintiff individually: (1) Torture, detention, surveillance, destruction of property. Amended Complaint ¶ 12. Plaintiff may have experienced such practices personally and claims damages for associated injuries. Id. ¶ 46. (2) Purposeful, deliberate, contrived and planned cultural demise of the Amungme culture due to various human rights and environmental violations. Id. ¶¶ 41-45. The court permits Beanal to make his claim for “cultural genocide” as a member of the Amungme tribe only. (3) All alleged environmental violations from various mining practices carried out in and nearby the locality where Plaintiff resides, including: destruction, pollution, alteration, and contamination of natural waterways, as well as surface and ground water sources; deforestation; destruction and alteration of physical surroundings. Id. ¶¶ 24-40. Plaintiff alleges that he is a resident of Tamika, Irian Jaya, Indonesia, where the Grasberg mine is located, and is a member of an indigenous tribe that inhabits the area. As a local inhabitant, Plaintiff has a palpable interest in the damage Freeport allegedly causes to nearby waterways and water source, soil, and forests, as well as any aesthetic injuries. B. HUMAN RIGHTS VIOLATIONS Beanal seeks to redress human rights violations under the Alien Tort Statute and the Torture Victim Protection Act. As noted above, Beanal complains individually of (1) arbitrary arrest and detention, (2) torture, (3) surveillance, (4) destruction of property, and (5) severe physical pain and suffering. Id. ¶ 12. Beanal alleges that Freeport engaged in these abuses through its security guards “in conjunction with third parties.” Based on a liberal construction of his complaint, Plaintiff may have been injured in connection with the following incidents described in the complaint: (1) Repeated acts of torture have occurred at Freeport security stations and Freeport containers, which conduct includes kicking with military boots, beating with fists, sticks, rifle butts, stones; starvation, standing with heavy weights on the subject’s heads, shackling of thumbs, wrists and legs, Id. ¶ 16; (2) Security surveillance of Plaintiff and others resulting in fear and mental stress, Id. ¶ 17; (3) Torture victims were forced to stand in Freeport containers in water calf-high which reeked of human feces, Id. ¶ 18; (4) Indigenous people have been detained with their eyes taped shut, thumbs tied, subject to repeated beatings by Freeport security personnel and third parties acting in conjunction with said personnel, Id. ¶ 19. The court must determine whether Beanal has stated a cause of action under the Alien Tort Statute or the Torture Victim Protection Act for any of these alleged injuries. 1. § 1350: The Alien Tort Statute The Alien Tort Statute provides: The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations. 28 U.S.C. § 1350. Beanal has not pled nor argued that a treaty applies. Rather, Beanal asserts that Freeport’s conduct violated the law of nations. Though mostly ignored since its enactment in 1789, § 1350 has more recently been used in connection with international human rights litigation. Filartiga v. Pena-Irala, 630 F.2d 876, 887 (2d. Cir.1980). Courts have recognized important precepts which relate to this case, namely, where a private individual asserts a claim against a private actor for violation of the law of nations. First, § 1350 provides a private right of action. Id. at 887; In re Estate of Ferdinand Marcos, Human Rights Litigation, 25 F.3d 1467 (9th Cir.1994), cert. denied, 513 U.S. 1126, 115 S.Ct. 934, 130 L.Ed.2d 879 (1995); Kadic v. Karadzic, 70 F.3d 232, 238 (2d Cir.1995); Abebe-Jira v. Negewo, 72 F.3d 844, 847 (11th Cir.1996); Xuncax, 886 F.Supp. at 179; Forti, 672 F.Supp. at 1539 (N.D.Cal.1987). Second, an individual found to have violated the law of nations may be held liable under § 1350. Filartiga, 630 F.2d at 880; Kadic, 70 F.3d at 239; Xuncax, 886 F.Supp. at 179; Forti, 672 F.Supp. at 1540. To make out a claim under § 1350, three elements must be satisfied: (1) an alien sues (2) for a tort (3) committed in violation of the law of nations. Kadic, 70 F.3d at 238, citing Amerada Hess Shipping Corp. v. Argentine Republic, 830 F.2d 421, 425 (2nd Cir.1987), reversed on other grounds, 488 U.S. 428, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989). The first two requirements are satisfied here: Beanal is an alien and has alleged tortious conduct. The issue before the court, therefore, is to determine whether the alleged conduct sets forth a violation of the law of nations. To do so, the court must determine, first, whether there is an applicable norm of international law and, second, whether it has been violated. Xuncax, 886 F.Supp. at 184. To be recognized as an international tort under § 1350, the alleged violation must be definable, obligatory (rather than hortatory), and universally condemned. Filartiga, 630 F.2d at 881. In making its determination, a court is guided by the sources from which customary international law is derived, including the usage of nations, judicial opinions and the works of jurists. Id, citing Filartiga, 630 F.2d at 884; cf. Carmichael v. United Technologies Corp., 835 F.2d 109, 113 (5th Cir.1988). Filartiga instructed that the law of nations is dynamic, rather than static: “[Cjourts must interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today.” Filartiga, 630 F.2d at 881. In sum, an international tort, i.e. one that violates the law of nations, should satisfy the following requirements: (1) no state condones the act in question and there is a recognizable “universal” consensus of prohibition against it; (2) there are sufficient criteria to determine whether a given action amounts to the prohibited act and thus violates the norm; (3) the prohibition against it is nonderogable and therefore binding at all times upon all actors. Xuncax, 886 F.Supp. at 184, citing Forti, 672 F.Supp. at 1539-1540; Restatement (Third) of Foreign Relations Law of the United States §§ 701-702 (“Restatement”). Freeport first contends that state action is required to violate international law. Free-port argues that Beanal has failed to allege state action and therefore cannot state a claim for violation of the law of nations. Carmichael, 835 F.2d at 113 (claim for official torture pursuant to § 1350 dismissed for failure to allege that defendant corporation conspired, aided or abetted a foreign state actor). Freeport further maintains that Beanal has failed to allege facts to state a claim for genocide even if the court should find that state action is not a required element of that claim. The court must determine whether state action is required to state a claim in violation of the law of nations. On this point, the Second Circuit’s decision in Kadic v. Karadzic, 70 F.3d 232 (2d Cir.1995), is instructive. In Kadic, two groups of victims, Croat and Muslim citizens of Bosnia Herzegovina, filed suit against Radovan Karadzic, the self-proclaimed President of Bosnian-Serb Republic within Bosnia Herzegovina. The plaintiffs complained that they were the victims of various human rights violations, including rape, forced prostitution, forced impregnation, torture, summary execution, genocide, other cruel, inhuman, and degrading treatment, assault and battery, sex and ethnic inequality, and wrongful death. The victims sought relief under the Alien Tort Statute, The Torture Victim Protection Act, and federal question jurisdiction. Kadic, 70 F.3d at 237. The district court dismissed the suit for lack of subject matter jurisdiction. The Second Circuit reversed and remanded the case to the district court for further findings as to genocide, war crimes, state action, torture and extrajudicial killing. Id. at 250. In Kadic, the Second Circuit held that state action is not required for all international torts. Id. at 239. Certain conduct violates the law of nations whether committed by a state or private actor, whereas other conduct only violates the law of nations if committed by a state actor. This court, as guided by the analysis in Kadic, reaches the same conclusion. Genocide, for example, violates international law, whether undertaken by a state or nonstate actor. Id. The Restatement provides that a state has jurisdiction “to define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern,” such as piracy, hijacking, genocide, war crimes, and certain acts of terrorism. Restatement § 404. So-called “universal jurisdiction” exists over the specified offenses, as a matter of customary law, “as a result of universal condemnation of those activities and general inferes!; in cooperation to suppress them, as reflected in widely accepted international agreements and resolutions of international organizations.” Id., comment a. Where a state has universal jurisdiction, it may punish conduct although the state has no links of territoriality or nationality with the offender or victim. Id. Universal jurisdiction includes civil tort actions. Id., comment b. Though the list of offenses specified in section 404 is not static, genocide is the only relevant offense for which universal jurisdiction exists and no state action must be proven. A broader range of conduct is actionable as violative of the law of nations only when committed by a state actor. Restatement section 702 provides: A state violates international law if, as a matter of state policy, it practices, encourages, or condones (a) genocide; (b) slavery or slave trade; (c) the murder or causing the disappearance of individuals; (d) torture or other cruel, inhuman, or degrading treatment or punishment; (e) prolonged arbitrary detention; (f) systematic racial discrimination; or (g) a consistent pattern of gross violation of internationally recognized human rights. As discussed below, some of the acts listed under section 702, e.g., murder and torture, could be actionable without proof of state action if committed as acts of genocide. Standing alone, however, the acts of murder and torture are only actionable by proof of state action. 2. § 1350 Claim Not Requiring State Action: Genocide Beanal’s complaint of genocide is less than crystal clear. One portion of the first amended complaint is entitled “Cultural Genocide,” but the word “genocide” does not otherwise appear. Beanal essentially complains that the alleged human rights abuses and environmental violations have resulted in the demise of the culture of the indigenous tribal people. The court reviews the facts Beanal alleges under the caption “Cultural Genocide”: ¶41. The Plaintiffs specifically reallege each and every paragraph of the foregoing complaint. ¶ 42. The Plaintiffs allege that the human rights violation and the eco-terrorism engaged in by the defendant corporations have destroyed the rights and culture of the Amungme and other Indigenous tribal people. ¶43. Since defendant corporations have commenced their operations, many Amungme people have been displaced and relocated to areas in the lowlands away from their cultural heritage of highland living. ¶ 44. Other Indigenous tribal people, including but not limited to Komora Tribe, have met the same fate. ¶45. The egregious human rights and environmental violations, which have terrorized the tribal communities of the Amungme and other Indigenous tribal people, destroyed their natural habitats and caused dislocation of the populations have resulted in the purposeful, deliberate, contrived and planned demise of a culture of indigenous people whose rights were never considered, whose heritage and culture were disregarded and the result of which is ultimately to lead to the cultural demise of unique pristine heritage which is socially, culturally and anthropologically irreplaceable. Amended Complaint ¶¶ 41-45. Since Plaintiff realleges the human rights and environmental practices in connection with the cultural genocide claim, the court may consider whether any of those allegations would be redressable if committed as acts of genocide. Genocide is an international tort. The crime of genocide was clearly recognized in the aftermath of the Second World War by the United Nations, international conventions, United States law and case law. Kadic, 70 F.3d at 241 (citations omitted). Article II of the Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 277, (“Convention on Genocide”), defines the crime of genocide as: [A]ny of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births with the group; (e) Forcibly transferring children of the group to another group. This definition is generally accepted for purposes of customary law. Restatement § 702, comment d. The Convention on Genocide unambiguously applies to all: “[pjersons committing genocide ... shall be punished, whether they are constitutionally responsible rulers, public officials, or private individuals.” Convention on Genocide, art. IV. This language squares with the Genocide Convention Implementation Act of 1987, 18 U.S.C. § 1091 (1988), and the Restatement, Restatement § 702, note d.: both non-state actors and state actors may be held liable for genocide. The application of the definition of genocide to Beanal’s complaint causes the court to pause. As mentioned above, Beanal does not allege genocide, but rather “cultural genocide.” The court focuses on the allegation that Freeport’s conduct has resulted in displacement, relocation and “purposeful, deliberate, contrived and planned demise of a culture of indigenous people.” As defined, genocide means the destruction of a “group” not a “culture.” Convention on Genocide art. II. The court accepts at face value that as a tribe, the Amungme would constitute a “group.” Furthermore, as defined, genocide includes deliberate acts on the group conditions of life “calculated to bring about its physical destruction,” but does not purport to include acts which cause “displacement” and “relocation” absent any physical destruction. Id. Finally, the acts of killing and causing serious bodily or mental harm constitute genocide only if they are carried out with the specific intent to destroy the group. The court is unwilling to make leaps of logic necessary to support a claim for genocide based on unpled facts. Clearly, Beanal has alleged certain acts, such as torture, which, if committed with the requisite intent, could constitute an act of genocide. The problem is that Beanal has failed to make the core allegation that Freeport is committing genocide on a group of people. If Beanal in fact means that Freeport is destroying the Amungme culture, then he has failed to state a claim for genocide. On the other hand, if Beanal intended to state that Freeport is committing acts with the intent to destroy the Amungme group, i.e. its members, then he has failed to make this allegation sufficiently explicit. The court finds that a claim for genocide is not sufficiently clear and Beanal shall be given the opportunity to make a more definite statement, pursuant to Rule 12(e). 3. § 1350 Claims Requiring State Action Beanal must allege state action in order to state a claim under § 1350 for non-genocide related human rights violations abuses. Restatement § 702, Kadic, 70 F.3d at 244. International law prohibits states from engaging in certain human rights abuses, including genocide, murder, causing disappearance, torture, cruel and inhuman treatment or punishment, prolonged arbitrary detention and systematic race discrimination. Restatement § 702. The Restatement provides that “a state violates international law, if as a matter of state policy, it practices, encourages or condones” certain proscribed conduct. Id. With the exception of genocide, Plaintiff must allege state action in order to state a claim for any of these violations. Id. To allege state action, the challenged conduct must be attributable to the state, in other words, it must be official conduct. Restatement § 207, comment c. A state is responsible for any violation of its obligations under international law resulting from action or inaction by “any organ, official, employee, or other agent of a government or of any political subdivision, acting within the scope of authority or under color of such authority.” Id. Freeport does not satisfy the definition of a “state” as that term is defined in international, law. Restatement § 201. Under international law, a state is an entity that has a defined territory and a permanent population, under the control of its own government and that engages in, or has the capacity to engage in, formal relations with other such entities. Id. The fact that Freeport is itself not a “state” does not preclude its liability for violation of the law of nations since state actors, not merely the state itself, can be held liable for such violations. Restatement § 207. The court must determine whether Plaintiff has sufficiently alleged that Freeport’s alleged conduct constitutes state action. Prehminarily, the court notes that nowhere in his complaint does Plaintiff allege that Freeport is a state actor, that Freeport was clothed with actual or apparent authority of the Republic of Indonesia, that Freeport aided or abetted official conduct or that Free-port acted under color of Indonesian law. As discussed below, any such terminology is used in the complaint to link the alleged conduct to Freeport, rather than to link Freeport to the Indonesian government. In an effort to liberally construe the complaint, the court probes the allegations to determine if such facts could form a basis for state action. To determine whether state action has been alleged, the court considers the test contained in Restatement section 207 and the “under color of law” jurisprudence of 42 U.S.C. § 1983 (“ § 1983”). Kadic, 70 F.3d at 245; Forti, 672 F.Supp. at 1545; Restatement § 207, note 4. It is difficult to discern from his complaint the theory of state action that Beanal seeks to establish. In his memorandum, Beanal argues that the allegations contained in Paragraph 8 of the Amended Complaint satisfy the state action requirement. Plaintiff argues that “the ‘symbiotic relationship’ between FREEPORT’S employees, within its security force, and the Indonesian military” satisfies the requirement that those individuals acted under the “actual or apparent authority” of the Republic of Indonesia. Opposition Memorandum, Record Doc. No. 81. Though this argument lends some insight into a Plaintiffs theory of state action, Plaintiff cannot augment his complaint through his opposition memorandum. The facts forming a basis for state action must be discernible from the face of the complaint. The following allegations implicate some governmental involvement: ¶ 8. The corporate defendants maintain a military presence within its mining operation wherein troops of the Republic of Indonesia are fed, transported, paid and provided equipment from the defendants in order to assist its operations. ¶ 10____[Freeport has] systematically engaged in a corporate policy both directly and indirectly through third parties which have resulted in human violations against the Amungme tribal people and other Indigenous tribal people. ¶ 11____ The Indonesian Government is a major shareholder of the P.T. Freeport Indonesia, an affiliate of the defendants, Freeport, and the defendants’ principle source of corporate income. ¶ 12.... [Defendants’ security guards in conjunction with third parties acting by and through the corporate policy of the defendants have engaged in summary execution, arbitrary.arrest and detention, torture, disappearances, surveillance and the destruction of property. Said violations have occurred on FREEPORT buses, within FREEPORT workshops, at FREE-PORT security command centers, FREE-PORT security stations, FREEPORT private roadways and containers owned by said corporate defendants. ¶ 21. That various human rights reports contain repeated first hand accounts of the brutal human rights violations of the FREEPORT security personnel and/or agents of FREEPORT whose conduct is acquiesced to, accepted, adopted and/or ratified by the defendant corporations as part of their corporate policy in operation and expanding their FREEPORT mining concession in Irian Jaya, Indonesia at the expense of the local indigenous people. ¶22. The Plaintiffs allege that FREE-PORT security personnel or third parties supported by defendant corporations were acting under actual or apparent authority of the defendant corporations. The court analyzes these allegations using the “under color of authority” test contained in the comments to Restatement section 207. In determining whether an act was within the authority of an official or an official body, or was done under color of such authority, (clause (c)), one must consider all the circumstances, including whether the affected parties reasonably considered the action to be official, whether the action was for public purpose or for private gain, and whether the persons acting wore official uniforms or used official equipment. Restatement § 207, comment d. Applying the considerations noted in the Restatement reveals no easy conclusions regarding an allegation of state action. First, it is unclear whether the “affected parties reasonably considered the action to be official.” Beanal does not allege what exactly happened to him, who exactly he thought was involved in the challenged conduct, or whether he considered such person(s) to be engaging in official conduct. Second, it is unclear what purpose such abusive “security” practices could serve. Ostensibly, Freeport is motivated by “private gain”, i.e. corporate profit seeking, and the “security” practices and presence of Indonesian military personnel are designed to “assist [Freeport’s] operations.” Amended Complaint ¶8. The fact that the Indonesian Government funds Free-port does not convert Freeport’s alleged practices into official action. Beanal has not alleged that Freeport is carrying out some “public purpose” through its harsh security practices on behalf of the Indonesian government. Beanal does allege that Freeport maintains, i.e. feeds, transports, pays and equips, Indonesian military personnel on the premises. One could draw the inference that the military personnel participated first hand in the challenged conduct, help to create a martial atmosphere or lend an air of authority to Freeport’s security practices. These are mere inferences, not allegations. Beanal alleges that the Indonesian military personnel uses equipment supplied by Freeport, not the government and does not indicate whether the military personnel wear official uniforms. Based on the Restatement test for official conduct, some of Plaintiffs allegations point to official action involving Indonesian Government personnel, while other allegations indicate that Freeport engaged in private conduct which occurred in the presence of Indonesian military personnel. Since the foregoing analysis is inconclusive, the court further probes the allegations pertaining to state action. The court considers the “under color of law” jurisprudence of § 1983. In Kadic, the Second Circuit declared that plaintiff could meet the state action requirement by alleging that defendant “acted in concert with a foreign state.” Kadic, 70 F.3d at 244-245. In Carmichael, the Fifth Circuit stated, without deciding, that a private actor could be liable in tort for violation of international law by conspiring in, aiding or abetting official. acts. Carmichael, 835 F.2d at 114. In determining whether defendant “acted in concert” with a foreign state the court is guided by the “under color of law” jurisprudence applied in § 1983 cases. Id. at 245, citing Forti 672 F.Supp. at 1549, cf Restatement § 207, note 4. Section 1983 provides a cause of action against any person who, acting under color of state law, abridges rights created by the Constitution and the law of the United States. Federal Jurisdiction § 8.1. Section 1983 grants a remedy for violations of the Fourteenth Amendment of the United States Constitution, which provides, “No State shall ... deprive any person of life, liberty, or property, without due process of law.” In deciding whether the Fourteenth Amendment has been violated, courts distinguish between private and governmental conduct. See Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349, 95 S.Ct. 449, 452-53, 42 L.Ed.2d 477 (1974), quoting Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161 (1948) (describing the “essential dichotomy” between governmental action, which is subject to constitutional scrutiny, and private conduct, which is not). By condemning only certain official conduct, these laws exclude a vast range of conduct visited upon victims at the hands of private actors. This dichotomy between private and official conduct is mirrored in international law. See Restatement § 207, comment c (A state is responsible under international law only for official acts, but not for acts by private actors.) A private actor can be found liable under § 1983 for engaging in conduct which constitutes state action. The proper defendants in a § 1983 claim are those who represent the state in some capacity. Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1446 (10th Cir.1995). National Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179, 191, 109 S.Ct. 454, 462, 102 L.Ed.2d 469 (1988) (quoting Monroe v. Pape, 365 U.S. 167, 172, 81 S.Ct. 473, 476, 5 L.Ed.2d 492 (1961)). Similarly, in customary international law, a state is liable for official conduct committed by state officials. Restatement § 207, comment c, and § 702. The court understands the term “state” as it is used in the Restatement to be consistent with that term under § 1983 jurisprudence, i.e., “those who represent the state.” Accordingly, to make out his claim Beanal must allege that Freeport engaged in state action in violation of his rights under the international law of human rights. Corporations can represent the state. Both private individuals and private entities can be state actors and can be held liable under § 1983. Sims v. Jefferson Downs Racing Ass’n, 778 F.2d 1068, 1076 (5th Cir.1985). Section 1983 does not require that the defendant be an officer of the State. Dennis v. Sparks, 449 U.S. 24, 27, 101 S.Ct. 183, 186, 66 L.Ed.2d 185 (1980). “Private persons jointly engaged with state officials in the challenged action, are acting under color of law for purposes of § 1983 purposes.” Id. at 28, 101 S.Ct. at 186, citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142 (1970). Section 1983 applies to all persons, including corporations. The Restatement does not address who can be sued for human rights violations. Comment b to Restatement section 702 provides: In general, a state is responsible for acts of officials or official bodies, national or local, even if the acts were not authorized by or known to the responsible national authorities, indeed even if expressly forbidden by law, decree or instruction. The violations of human rights cited in this section, however, are violations of customary international law only if practiced, encouraged, or condoned by the government of a state as official policy. Restatement § 702, comment b. Section 702 uses the term “state,” and the comments refer to “officials or official bodies.” This language does not preclude corporate liability. Indeed, the term “official bodies” could cover private entities, rather than individuals, which engage in official conduct. Carmichael contemplated such corporate liability for a private actor which conspired in, aided or abetted official torture. Carmichael, 835 F.2d at 113-114. Thus, the court finds that a corporation found to be a state actor can be held responsible for human rights abuses which violate international customary law. Having so concluded, the court now considers four tests used to determine whether a private actor has engaged in state action for purposes of § 1983. The Supreme Court has recognized several circumstances in which a private actor can be held to have acted under color of law within the meaning of § 1983. In Gallagher, the Tenth Circuit Court of Appeal summarized the relevant tests: The Court has taken a flexible approach to the state action doctrine, applying a variety of tests to the facts of each case. [1] In some instances, the Court has considered whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself. [2] The Court has also inquired whether the state has so far insinuated itself into a position of interdependence with the private party, that there is a symbiotic relationship between them. [3] In addition the Court has held that if a private party is a willful participant in joint activity with the State or its agents then state action is present. [4] Finally the Court has ruled that a private entity, that exercises powers traditionally exclusively reserved to the State is engaged in state action. 49 F.3d at 1447 (quotations omitted). The court refers to these four tests as (1) the nexus test, (2) the symbiotic relationship test, (3) the joint action test, and (4) the public function test. Gallagher concerned the interaction between public officers and private security personnel. In Gallagher a group of individuals sued the University of Utah, a concert promoter and a private security corporation under section 1983 for violation of their Fourth Amendment rights. The plaintiffs were subjected to pat-down searches by the private security guards before entering the concert facility. University security officers observed but did not participate in the pat-down searches. After applying the four state action tests mentioned above, the Tenth Circuit Court of Appeal held that (1) the observation of the pat-down searches by university officials failed to provide the required nexus for state action, (2) the incidental benefits derived by the university from the concert was insufficient to satisfy the symbiotic relationship test for state action, and (3) the joint action test for state action was not satisfied due to plaintiffs failure to present any evidence that the university officers influenced or assisted the conducting of the pat-down searches. The holdings in Gallagher are instructive in determining whether a factual predicate for state action exists in BeanaTs complaint. Notably, Gallagher involved a motion for summary judgment rather than a motion to dismiss, which means that the Gallagher court engaged in a more demanding inquiry than is appropriate here. The Nexus Test Under the nexus test, a plaintiff must demonstrate that there is a sufficiently close nexus between the government and the challenged conduct such that the conduct may fairly be treated as that of the State itself. Id. at 1448. Governmental regulation, subsidy, approval of or acquiescence in the private conduct does not make the State responsible for the conduct. Id. To satisfy the nexus test, the state must be significantly involved in or actually participate in the alleged conduct. Id. at 1449, citing NBC v. Communications Workers of America, AFL-CIO, 860 F.2d 1022 (11th Cir.1988), Wagner v. Metropolitan Nashville Airport Auth., 772 F.2d 227 (6th Cir.1985), DAmario v. Providence Civic Center Authority, 783 F.2d 1 (1st Cir.1986). The D'Amario case bears some factual resemblance to this one. In D'Amario, both a private concert promoter company and a municipally owned company were found to be state actors who abridged plaintiffs First Amendment rights. Civic center employees enforced a so-called “no camera” rule at certain performances at the publicly operated Providence Civic Center. Although the “no camera” policy stemmed from the contractual agreement between two private parties, the enforcement of policy by the civic center employees constituted state action under the nexus test. D'Amario, 783 F.2d at 3. By contrast, in Gallagher, the court found that the observation by public employees of the pat-down searches performed by private security guards did not satisfy the nexus test for state action. Gallagher, 49 F.3d at 1450. The nexus test would be met if appellant could demonstrate that the pat-down searches directly resulted from the University’s policies, but the mere presence of police officers did not transform the conduct of private parties into state action. Id. (citations omitted). The nexus test requirements of significant involvement and actual participation can be summarized as follows: where public officers enforce violative policies, there is state action; where public officers merely observe the enforcement of violative policies, there is no state action. Beanal fails to allege facts sufficient to establish state action based on the nexus test. From the complaint it appears that Freeport’s security personnel are distinct from the military personnel. Beanal specifically states that the mine is “policed” by Freeport’s paramilitary type security personnel. Amended Complaint ¶ 8. He further alleges, “Additionally, upon information and belief, the corporate defendants maintain a military presence ... in order to assist its operations.” Id. Beanal does not allege, however, what role those Indonesian troops played in the alleged violative conduct. Put simply, Beanal hasn’t alleged whether the military personnel helped enforce Freeport’s policies or merely observed Freeport’s private security guards engage in the violative conduct. Inferentially, the complaint seeks to link the troops to the violations at hand. To draw that conclusion, however, would require the court to make up facts not alleged in the complaint. The Symbiotic Relationship Test State action can be established under the symbiotic relationship test if the state “has so far insinuated itself into a position of interdependence” with a private party that “it must be recognized as a joint participant in the challenged activity.” Burton, 365 U.S. at 725, 81 S.Ct. at 862, cited in Gallagher, 49 F.3d at 1450. To establish a symbiotic relationship, the state and the private entity need be “physically and financially integral.” In Burton, the Court held a private restaurant to be a state actor. Burton, 365 U.S. at 723-24, 81 S.Ct. at 861. The Court found that by virtue of leasing its parking garage from a state agency, the restaurant functioned as a “physically and financially integral and, indeed, indispensable part” of the state’s operation of its property. Burton, 365 U.S. at 723-24, 81 S.Ct. at 861. The parking structure was located on public property and maintained through public funds; its primary purpose was to lease parking space to commercial lessees. Compare Moose Lodge, 407 U.S. at 175-177, 92 S.Ct. at 1972-1973 (finding no state action as to the discriminatory practices of a private club located on private property to which the state had granted a liquor license.) The symbiotic relationship test from Burton is narrowly interpreted. The Court has held that state regulation, state funding, state approval of challenged conduct do not necessarily establish a symbiotic relationship between the state and a private entity. Gallagher, 49 F.3d at 1450 (citations omitted). Two salient facts from Burton remain critical: that the state profited from the restaurant’s discriminatory practices and that the restaurant was an indispensable part of a state project. Id. In Gallagher, the court found no symbiotic relationship existed based on the fact that the pat-down searches took place on University property and the fact that the University profited from the concert. The two entities were not “functionally intertwined,” long-term dependence of one on the other was lacking, and the contractual benefits generated by the unconstitutional contract were not “indispensable” to the University’s financial success. Gallagher at 1452-1453. Payment under government contracts, government grants and tax benefits are insufficient to establish a symbiotic relationship between the government and a private entity. Id. citing Rendell-Baker, 457 U.S. at 830, 102 S.Ct. at 2765-66. Beanal’s complaint alleges a close link between Freeport and Indonesian government. The complaint alleges that the Indonesian Government is a major shareholder in P.T. Freeport Indonesia, and a principal source of Freeport’s corporate income. Amended complaint ¶ 11. The complaint also refers to Freeport’s “mining concession” throughout the complaint. It appears that the Indonesian government granted Freeport long-term mining rights, although the terms of such agreement are not mentioned in the complaint. There are too few facts alleged upon which to base a symbiotic relationship analysis for purposes of determining whether state action is alleged. A government contract conferring a mining concession and government investment in the operation are insufficient facts, standing alone, to allege a symbiotic relationship between Freeport and the Indonesian government. The Joint Action Test State action is present where a private party is a “willful participant in joint action with the State or its agents.” Dennis, 449 U.S. at 27, 101 S.Ct. at 186. As the Gallagher court made clear, the joint action test looks to whether the state officials and private parties acted in concert in effecting a particular deprivation of constitutional rights. Gallagher, 49 F.3d at 1453. The Fifth Circuit appears to require some actual participation or cooperation on behalf of the state and private actor in violating complainant’s rights. See Sims, 778 F.2d at 1079 (Solicitation and grant of improper use of state power rendered private plaintiff a willful participant in a joint action with the State or its agents.) As with the nexus test, state acquiescence or approval of the challenged conduct does not appear sufficient to satisfy the joint action test. Gallagher, 49 F.3d at 1455-1456. Rather, the presence of government officers must have influenced or been an integral part of the challenged conduct. Id. In Gallagher, the court found that there was no state action based on the joint action test because there was no evidence that the University shared with the private defendants the common goal to violate plaintiffs constitutional rights by conducting pat-down searches, that the University police influenced the decision to conduct the searches, or that the University played any role in the promotion company’s decision to hire the private security company. Beanal’s complaint is insufficient under the joint action test for the reasons discussed with respect to the nexus test. Namely, the complaint fails to state what role, if any, the Indonesian military personnel played in the challenged conduct. In order to state facts sufficient to satisfy the joint action test, there must be some allegation indicating that the troops jointly cooperated in the conduct, jointly participated in the conduct, influenced the conduct or played an integral part in the deprivation of human rights. The complaint merely alleges an Indonesian military presence and obliquely refers to the participation of “third parties” who aided Freeport in the challenged conduct. The court finds that these allegations fail to make out a claim for state action under the joint action test. The Public Function Test Finally, state action can exist where a private entity performs a function traditionally the exclusive prerogative of the State. Jackson, 419 U.S. at 352, 95 S.Ct. at 454. Few public functions have been found to satisfy this test. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 157-58, 98 S.Ct. 1729, 1734, 56 L.Ed.2d 185 (1978). Among those activities which satisfy the public function test is the operation of a company owned town, i.e. where the “streets, alleys, sewers, stores, residences, and everything else that goes to make a town” are privately owned. See Hudgens v. N.L.R.B., 424 U.S. 507, 516, 96 S.Ct. 1029, 1034, 47 L.Ed.2d 196, Marsh v. Alabama, 326 U.S. 501, 505-09, 66 S.Ct. 276, 278-80, 90 L.Ed. 265. The management of a city park is also deemed an exclusive public function. Evans v. Newton, 382 U.S. 296, 298-302, 86 S.Ct. 486, 487-490, 15 L.Ed.2d 373 (1966). Again here, Beanal failed to allege facts which would satisfy the state action requirement under the public function test. Beanal alleges that Freeport operates the Grasberg Mine, which encompasses an area of 26,400 square kilometers which site was “policed” by Freeport’s security personnel. Beanal further alleges the alleged human rights violations “occurred on FREEPORT buses, within FREEPORT workshops, at FREE-PORT security command centers, FREE-PORT security stations, FREEPORT private roadways and containers owned by said corporate defendants.” Amended Complaint ¶ 12. It is unclear from the complaint whether Freeport actually operates or owns a town, controls the roads and walkways, residences, markets, etc., or has taken over the functions of regulating local life. The allegations create a picture, nonetheless, of Freeport’s vast and draconian control over the Grasberg Mine area. In sum, Beanal has failed to allege state action. Beanal has failed to allege what role, if any, that Indonesian military personnel played in committing the alleged conduct. More importantly, Beanal has failed to allege facts which would convert Freeport’s alleged conduct into official action. State action is required to state a claim for violation of the international law of human rights. The court therefore dismisses without prejudice Beanal’s claim for human rights violations under the Alien Tort Statute for failure to state a claim, and grants Plaintiff leave to amend his complaint in order to more specifically allege facts which form the basis for his state action argument, pursuant to Rule 12(e). Fed. R. Civ. Proc. 12(e). Impact of Torture Victim Protection Act on § 1350 The court rejects Freeport’s contention that the Torture Victim Protection Act provides the sole cause of action for torture and extrajudicial killing brought under § 1350. The legislative history of the TVPA and recent case law stand for the contrary proposition that the TVPA codifies and expands the remedies available under § 1350. The court has failed to uncover a legislative intent to repeal or limit the kinds of claims redressable under § 1350. The court focuses on the statutory text, the legislative history and recent case law. The text of the TVPA does not indicate that the statute provides the exclusive set of remedies for torture and extrajudicial killings. Congress unambiguously indicated that the Alien Tort Statute “has other important uses and should not be replaced.” H.R. Rep. 367(1), 102nd Cong., 1st Sess.1991, 1992 U.S.S.C.AN. 84, 1991 WL 255964. In addition to codifying an “unambiguous and modern basis for a cause of action that has been successfully maintained under the existing law,” Congress stated: The TVPA ... would enhance the remedy already available under section 1350 in an important respect: While the Alien Tort Claims Act provides a remedy to aliens only, the TVPA would extend a civil remedy also to U.S. citizens who may have been tortured abroad. Official torture and summary executions merit special attention in a statute expressly addressed to those practices. At the same time, claims based on torture or summary executions do not exhaust the list of actions that may appropriately be covered [by] section 1350. That statute should remain intact to permit suits based on other norms that already exist or may ripen in the future into rules of customary international law. Id. From this passage, it appears that Congress did not intend for the TVPA to impinge on the scope of § 1350 or change the “law of nations.” Congress clearly meant for “other norms” and future rules of international customary law to be redressable under § 1350. Congress did not indicate whether the court meant for the TVPA to become the exclusive remedy for torture and extrajudicial killings. Considering that the TVPA “enhances” rather than shrinks the scope of remedies under § 1350, there is no reason to conclude that by enacting the TVPA Congress took away causes of action for torture and extrajudicial killings under § 1350. The Kadic court reached the same conclusion. In Kadic, the court reviewed the legislative history and concluded, “The scope of the Alien Tort Statute remains undiminished by enactment of the Torture Victim Protection Act.” 70 F.3d at 241. The court went on to address plaintiffs claims for torture and summary execution § 1350, noting that torture and summary execution are redressable under customary international law. Kadic, 70 F.3d at 243. The court declines to find that TVPA repealed by implication the Alien Tort Statute, either in whole or in part. The doctrine of repeal by implication is disfavored. Radzanower v. Touche Ross & Co., 426 U.S. 148, 154, 96 S.Ct. 1989, 1993, 48 L.Ed.2d 540 (1976). The Court recognizes certain appropriate circumstances: There are, however, “two well-settled categories of repeals by implication — (1) where provisions in the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one; and (2) if the later act covers the whole subject matter of the earlier one and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier act. But, in either case, the intention of the legislature to repeal must be clear and