The opinion of the court was delivered by: Allen G. Schwartz, United States District Judge.
Plaintiffs, current and former residents of the Republic of the Sudan ("Sudan" or "Government"), bring this purported class action against Talisman Energy, Inc. ("Talisman") and Sudan, alleging violations of international law stemming from oil exploration activities conducted in that country. Specifically, plaintiffs allege that defendants collaborated to commit gross human rights violations, including extrajudicial killing, forcible displacement, war crimes, confiscation and destruction of property, kidnapping, rape, and enslavement. Collectively, plaintiffs claim that these activities amount to genocide. Talisman moves to dismiss this action on the basis of lack of subject matter jurisdiction, lack of personal jurisdiction, lack of plaintiffs' standing, forum non conveniens, international comity, act of state doctrine, political question doctrine, failure to join necessary and indispensable parties, and because equity does not require a useless act. For the reasons set forth below, Talisman's motion to dismiss is denied.
II. Factual Background*fn1
This action arises out of the alleged activities of Talisman in southern Sudan. Plaintiffs claim that Talisman, a large Canadian energy company, collaborated with Sudan in "ethnically cleansing" civilian populations surrounding oil concessions located in southern Sudan in order to facilitate oil exploration and extraction activities. See Amended Class Action Complaint ("Amended Complaint"), at ¶ 1. This policy of "ethnic cleansing"*fn2 was aimed at non-Muslim, African residents of southern Sudan, and entailed extrajudicial killing*fn3, forced displacement, military attacks on civilian targets, confiscation and destruction of property, kidnappings, rape, and the enslavement of civilians. See id. at ¶ 1. In order to understand the current conflict in context, the Court presents some background information on Sudan and its turbulent history.
B. Geography and Population*fn4
Sudan is a large African country roughly a quarter of the size of the United States. Its current population is approximately 37 million people*fn5, of which seventy percent are Sunni Muslim, a quarter practice indigenous religions, and five percent are Christian. Most Muslims, who are predominantly of Arabic ethnicity, live in the north of the country; most non-Muslims, who are predominantly of African ethnicity, live in the south. The north-south conflict that has wracked Sudan for years has played out predominantly along these religious and ethnic lines.
Sudan historically existed as a collection of small, independent kingdoms and principalities. In 1820-21, Egypt conquered and unified the northern portion of the country. While claiming all of present-day Sudan, Egypt was unable to establish effective control over southern Sudan, which remained largely fragmented. A religious leader, Muhammad ibn Abdalla, after unifying some of the tribes of western and central Sudan, led a nationalist revolt which culminated in the fall of Khartoum in 1885. Ibn Abdalla died thereafter, but the state survived until the arrival of an Anglo-Egyptian force under Lord Kitchener in 1898. For the next fifty years, Sudan was jointly administrated by Britain and Egypt.*fn7 With the consent of Egypt and Britain, Sudan achieved independence on January 1, 1956. The United States was among the first nations to recognize the new state. However, the Arab-controlled Khartoum govermnent backtracked on a promise it had made to create a federal system. As a result, southern units of the Sudanese army mutinied, sparking seventeen years of civil war (1955-1972).*fn8
The 1972 Addis Ababa agreement led to a temporary cessation in the north-south civil war. Under the terms of the agreement, southern Sudan was granted a degree of self-rule. In 1976, the religious "Ansars" ("followers") staged an unsuccessful coup attempt. Sudanese president Col. Gaafar Muhammad Nimeiri met with Ansar leader Sadiq al-Mahdi. The result of the negotiations between the government and the Ansars was a general amnesty and a release of political prisoners. In 1983, President Nimeiri declared his intention to transform Sudan into a Muslim Arab state and began to incorporate traditional Islamic punishments drawn from Shari'a (Islamic Law) into the Sudanese penal code. Al-Mahdi questioned President Nimeiri's credentials to Islamicize Sudanese society, and was promptly placed under house arrest. President Nimeiri declared a state of emergency, and Shari'a was applied more broadly. Amputations for theft and public lashings for alcohol possession became common. Southern, non-Muslim Sudanese living in the north were also subject to Shari'a. In light of these developments, the civil war, in abeyance since 1972, reignited.
In 1986, elections were held and a transitional military council turned over power to a civilian government as promised. Al-Mahdi became prime minister and led a coalition government. During the next three years, the civil war intensified in lethality and the economy continued to deteriorate. In 1989, the army replaced the government with the Revolutionary Command Council for National Salvation led by General Omar Hassan al-Bashir. The military regime repudiated an earlier tentative peace agreement, and sought to restart negotiations with the southern Sudanese rebels without preconditions. These negotiations proved unsuccessful. According to plaintiffs, the post-1989 military regime has "dramatically intensified the religious and ethnic persecution of non-Muslim Sudanese by engaging in a campaign of terror, both domestically and internationally, against non-Muslims it perceives to be its enemies." Amended Complaint, at ¶ 12. The military regime also accelerated the application of Shari'a throughout Sudan. In 1991, the military regime enacted the Criminal Act of 1991, which instituted Shari'a-based penalties nationwide, including amputation and stoning. In 1993, the government transferred all non-Muslim judges from southern Sudan to the north, and replaced southern judges with Muslim judges.
Plaintiffs allege that the present government of Sudan is controlled by a "Taliban-style Islamic fundamentalist movement" known as the National Islamic Front. Amended Complaint, at ¶ 12. Plaintiffs contend that the government of Sudan is prosecuting a "war of genocide" against the population in the southern part of the country. Amended Complaint, at ¶ 14. This genocide, which plaintiffs also describe as a jihad, or holy war, is purportedly aimed at the forced Islamization of the south, and has resulted in approximately two million deaths and the displacement of four million people. See Amended Complaint, at ¶ 14. Christians and those practicing traditional indigenous religions are subject to intense persecution, including extrajudicial killing, kidnapping, rape, enslavement, and confiscation of property. See id. at ¶ 1.
Sudan's attacks on civilians have been widely acknowledged and condemned. Plaintiffs note that in 1997, Sudan was classified by the United States as a state sponsor of terrorism pursuant to the International Emergency Economic Powers Act, 50 U.S.C. § 1701 et seq., based, inter alia, on its record of terrorism and on the prevalence of human rights violations including slavery and restrictions on religious freedom. See Amended Complaint, at ¶ 13. In September 2000, Commissioner Nina Shea of the United States Commission on International Religious Freedom expressed the Commission's view that "the government of Sudan is the world's most violent abuser of the right to freedom of religion and belief." Id. at ¶ 50(b). In March 2001, Secretary of State Colin Powell reported that "[t]here is perhaps no greater tragedy on the face of the Earth today than the tragedy that is unfolding in the Sudan." Id. at ¶ 50(c).
On October 31, 2001, President Bush extended the sanctions against Sudan, declaring that "the actions and policies of the Government of Sudan continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States." Amended Complaint, at ¶ 13. Since the Amended Complaint was filed, President Bush signed the Sudan Peace Act, Pub. L. No. 107-245 (2002) ("Peace Act"). The Peace Act, which was passed unanimously in the Senate and by a vote of 359 to 8 in the House of Representatives, states that "[t]he acts of the Government of Sudan, including the acts described in this section, constitute genocide as defined by the Convention on the Prevention and Punishment of the Crime of Genocide." Peace Act, at § 2(10). The Peace Act also condemns, inter alia, Sudan's overall human rights record, its role in tolerating slavery, its aerial bombardment of civilian targets. See id. at § 4(1). It also states that Sudan is systematically engaging in a policy of "low-intensity ethnic cleansing" to destroy the societies, culture, and economies of the Dinka, Nuer, and Nuba peoples. See id. at § 4(2).
Plaintiffs contend that the current conflict in Sudan has evolved into an "oil war" for control of valuable petroleum resources in the south. See Amended Complaint, at ¶ 11. Deposits of oil were discovered in 1979 by the Chevron Oil Company. Upper Nile, Unity, and Southern Kordofan provinces appear to be especially rich in oil deposits. However, the oil deposits in these areas are of a heavy and viscous nature, requiring sophisticated Western methods for extraction and processing. See id. at ¶ 17. Consequently, the Sudanese government granted oil concessions to foreign oil companies. The other factor complicating oil exploration and extraction is the fact that the oil-rich areas lie in southern areas that had been outside of the government's control since 1982 by virtue of the civil war. See id. at ¶ 16. Indeed, Chevron's exploration and extraction efforts came to an end in 1984 after several Chevron workers were killed. See id. at ¶ 16. After an abortive attempt to restart operations in 1988, Chevron sold its concession to the Arakis Energy Corporation ("Arakis"), a Canadian company. See id. at ¶ 16. According to plaintiffs, Arakis (and later Talisman) were aware from the outset that military action would be required to secure the concession for oil exploration and extraction. See id. at ¶ 18.
According to plaintiffs, the Government's oil development policy and its violent campaign against ethnic and religious minorities were inextricably linked from the beginning. See id. at ¶ 21. Plaintiffs allege that the Government saw its oil reserves as potential sources of capital to purchase missiles, tanks, bombers, helicopters, and other sophisticated armaments needed to intensify its "jihad" against the southern population. The Sudanese government realized it would be unable to successfully develop its oil reserves without outside aid. Plaintiffs describe the resulting arrangement between the Government and oil companies thusly:
In exchange for oil concessions, the Government
promised to clear the area around the oil fields of
the local population. The oil companies agreed to
invest in the infrastructure, such as transportation,
roads and airfields and communications facilities, to
support exploration and the Government would use that
same infrastructure to support its genocidal military
campaign of ethnic cleansing against the local
population. Under this unholy alliance, the oil
companies would be able to maximize security around
the oil installations and Sudan would get the capital
necessary to wage a full scale war against the south.
Amended Complaint, at ¶ 21. Plaintiffs allege that the Government's conflict with the south serves two purposes — advancing the jihad against the non-Muslim south, and depopulating areas around oil concessions. See id. at ¶¶ 14-15.
Talisman Energy, Inc. is the largest independent Canadian oil producer and is headquartered in Calgary, Alberta. See Amended Complaint, at ¶ 3. It conducts activities throughout the world, with operations in Canada, the United States, the North Sea, Indonesia, Algeria, Trinidad, Colombia, and Sudan. See id. at ¶ 3. It is a public company and its shares are traded on the Toronto and New York Stock Exchanges. See id. at ¶ 3. Within the United States, Talisman conducts ongoing and significant business through its wholly-owned subsidiary, Fortuna (U.S.) Inc. ("Fortuna"), and Rigel Petroleum, Inc. ("Rigel"). Fortuna is a Washington corporation; Rigel is a Utah corporation. The extent of Talisman's presence in the United States is examined in depth infra.
On October 28, 1998, Talisman acquired all of the assets and liabilities of Arakis, including its Sudanese operations, for approximately $220 million in stock. See id. at ¶ 22. Currently, Talisman operates in Sudan through a consortium of oil companies, called the Greater Nile Petroleum Operating Company Ltd. ("GNPOC"). See id. at ¶ 7. Talisman, through intermediate subsidiaries, owns or controls 25% of GNPOC. See id. at ¶ 7. The other GNPOC constituents are the Chinese National Petroleum Company (40%); Petronas Carigali Nile Ltd. of Malaysia (30%); and Sudapet Ltd. of Sudan (5%). See id. at ¶ 7. In this action, Talisman is being sued for its own actions and omissions as well as in its capacity as successor-in-interest to Arakis and as a member of GNPOC. See id. at ¶ 3.
After GNPOC was formed, each of its constituent members took on specific areas or tasks. Talisman was in charges of exploration and production in certain areas known as Block 1, 2, and 4. See id. at ¶ 19. This area totals approximately 130,000 acres of land with proven oil reserves and nearly 12 million acres of land with no proven oil reserves. See id. at ¶ 19. Block 1, known as Unity field, is in an area northeast of the city of Bentiu. See id. at ¶ 19. Block 2, known as Heglig field, is east of Block 1. Block 4, known as Kaikang field, lies to the south and west of Blocks 1 and 2. See id. at ¶ 19. The areas covered by Blocks 1, 2, and 4 are inhabited primarily by the Dinka and Nuer peoples, who are Christian or practice traditional indigenous religions. See id. at ¶ 19.
3. Defendants' Alleged Conduct
Plaintiffs claim that Arakis had a "well-known and established relationship with the Sudanese military." Amended Complaint, at ¶ 22. In exchange for government protection, Arakis repaired Government military trucks and supplied basic utilities to nearby Government military bases. See id. at ¶ 22. Arakis was aware that the Government was engaged in a campaign of "ethnic cleansing" to provide a cordon sanitaire to facilitate the exploration and extraction of oil. See id. at ¶ 22.
Talisman commenced its operations in Sudan in October 1998. See id. at ¶ 28. Plaintiffs contend that Talisman worked with the Government to devise a plan of security for the oil fields and related facilities. See id. at ¶ 26. Talisman hired its own military advisors to coordinate military strategy with the Government. See id. at ¶ 26. Specifically, Talisman would have regular meetings with Sudan's army intelligence unit and the Ministry of Energy and Mining during which the parties would discuss "how to dispose of civilians" in areas in which Talisman intended to operate. Id. at ¶ 32. Based on the joint Talisman-Government strategy, "Government troops and allied militia engaged in an ethnic cleansing operation to execute, enslave or displace the non-Muslim, African Sudanese civilian population from areas that are near the pipeline or where Talisman wanted to drill." Id. at ¶ 26. Talisman was and is aware that Government's "protection" of oil operations entailed "ethnic cleansing" or genocide, including the murder of substantial numbers of civilians (including women and children); the destruction of civilian residences and villages; and the capture and enslavement of civilians who survived the military attacks. See id. at ¶ 33. Defendants' concerted actions are purportedly demonstrated by, inter alia, a May 7, 1999 communication from the Government's Petroleum Security Office in Khartoum to a satellite office in Heglig. See id. at ¶ 27. This directive, denominated as "very urgent," reads as follows:
In accordance with directives of His Excellency the
Minister of Energy and Mining and fulfilling the
request of the Canadian Company . . . the armed forces
will conduct cleaning up operations in all villages
from Hegng to Pariang.
Id. at ¶ 27. Plaintiffs claim that thousands of villages and at least seventeen churches were destroyed in the areas surrounding Talisman's oil fields, and that one, el-Toor, was located within walking distance of a Talisman site. See id. at ¶ 30. The same Government troops assigned to protect Talisman's oil operations participated in the armed campaign against ethnic and religious minorities in the Unity and Ruweng areas. See id. at ¶ 30. In the last year, Talisman has expanded operations in Block 4. This expansion was preceded by an extensive Government military campaign against at least seven Nuer villages. Talisman officials were and are aware of these military activities around its oil fields, and of the Government's tactics of targeting civilians. See id. at ¶ 48. At several points, the then-governor of Unity province advised Talisman officials of the violent displacement of the civilian population. See id. at ¶ 48.
In addition to this alleged direct support, Talisman also allegedly indirectly supported the Government's genocidal campaign. Plaintiffs note that Talisman, through GNPOC, built a network of all-weather roads. See id. at ¶ 35. These roads were used by Government forces to launch military offensives against civilian targets. See id. at ¶ 35. Similarly, Talisman expanded an existing dirt runway in Heglig to accommodate large transport planes. See id. at ¶ 36. This runway was later regularly used, with Talisman's knowledge, for military purposes, including bombing and strafing attacks on civilian areas. See id. at ¶ 36. In October 2001, the Heglig airfield was used to bomb a United Nations relief site. See id. at ¶ 37. Another Talisman airfield, in the Unity area is also used by the Government to attack civilian targets. See id. at ¶ 38. GNPOC has also provided vehicles for use by the Government in its war against ethnic and religious minorities in the south. See id. at ¶ 39. Plaintiffs cite two examples. First, at the end of 1998, GNPOC gave the Government fifty camouflaged transport vehicles. See id. at ¶ 39. Second, Talisman worked with the Government to establish a military garrison at Wangkei. See id. at ¶ 39.
Plaintiffs also cite statements made by non-governmental organizations, United States government officials, United Nations officials, and others attesting to the gross human rights violations committed by Sudan. These statements also allege that the oil exploration and extraction activities taking place in Sudan are fueling the war on civilians. For example, plaintiffs cite a statement by the United Nations Commission on Human Rights: "[L]ong-term efforts by the various Governments of the Sudan to protect oil production have included a policy of forcible population displacement in order to clear oil producing areas and transportation routes of southern civilians." Id. at ¶ 54(a). Plaintiffs allege that "Sudan has used its oil' revenues to finance the creation of a domestic arms industry necessary to assist in its prosecution of military operations against non-Muslim, African Sudanese minorities in light of the international arms embargo." Id. at ¶ 57.
Plaintiffs in this action claim to be the victims of the genocidal acts allegedly committed by Sudan and Talisman. They are, pursuing this action on their own behalf and on behalf of all non-Muslim, African Sudanese residents of areas within fifty (50) miles of the GNPOC or other oil concession areas and transportation routes in Sudan. See Amended Complaint, at ¶ 66.
1. Presbyterian Church of Sudan
The Presbyterian Church of Sudan ("Presbyterian Church") is an unincorporated association of people of the Presbyterian faith who are or were residents of Sudan. See Amended Complaint, at ¶ 2(a). Its parishes are located in a broad area of Upper Nile province within and adjacent to the Unity and Heglig oil concessions.*fn9 See id. at ¶ 2(a). Plaintiffs claim the Presbyterian Church's churches have been bombed and destroyed and that its church leaders and parishioners have been displaced by Government forces because of their religion and proximity to the oil fields. See id. at ¶ 2(a).
2. Rev. John Sudan Gaduel
Rev. John Sudan Gaduel is a citizen of Sudan currently residing in Kenya and is Pastor of the Presbyterian Church of Sudan in Bentiu. See id. at ¶ 2(b). As a result of the alleged actions of defendants,*fn10 Rev. Gaduel was forced to seek refuge in Kenya for his own safety. See id. at ¶ 2(b). Rev. Gaduel established the South Sudan Operation Mercy in 1999, a non-denominational relief organization to coordinate emergency relief efforts for the displaced people of southern Sudan. See id. at ¶ 2(b).
3. Nuer Community Development Services in U.S.A.
Nuer Community Development Services in U.S.A. ("NCDS") is a non-profit corporation organized under the laws of the State of Minnesota in 1999. See id. at ¶ 2(c). Its mission is to assist Nuer refugees in the United States and those who remain in Sudan. See id. at ¶ 2(c). Members of NCDS are refugees who fled areas within or adjacent to Talisman's oil concessions in southern Sudan due to defendants' "ethnic cleansing" campaign against non-Muslim Africans. See id. at ¶ 2(c). NCDS members are now citizens of the United States or resident aliens. NCDS has chapters and/or members in states including New York, Nebraska, and Iowa. See id. at ¶ 2(c). Relatives of NCDS members in Sudan have been the subject of extrajudicial killings and kidnappings and have had their property destroyed or confiscated. See id. at ¶ 2(c).
Stephen Kuina is a Sudanese citizen who lived in the village of Dibor. See id. at ¶ 2(d). On April 4, 2000, as part of the Government's "ethnic cleansing" campaign against non-Muslim, African Sudanese in oil producing areas, his village was attacked by helicopter gunships and infantry forces. See id. at ¶ 2(d). The military action in Dibor led to deaths, property destruction, and the displacement of numerous villagers, including Kuina. See id. at 2(e).
5. Fatuma Nyawang Garbang
Fatuma Nyawang Garbang is a Sudanese citizen who currently resides in Illinois as a refugee. See id. at ¶ 2(e). Garbang is a Nuer of the Bul tribe and was born and raised in Bentiu. See id. at ¶ 2(e). In 1994, she and her husband were living in Ler when her village was bombed, allegedly as part of the Government's "ethnic cleansing" campaign against non-Muslim, African Sudanese in oil producing areas. See id. at ¶ 20(e). Garbang fled with her family and survived for twenty-one days hiding in the bush. See id. at ¶ 2(e). After seeking refuge in Kenya, Garbang returned to Ler and attempted to reestablish her home; however, repeated Government attacks in support of oil exploration and extraction activities made this impossible. See id. at ¶ 2(e).
Daniel Wour Cluol is a Sudanese citizen currently residing as a refugee in Iowa. See id. at ¶ 2(f). He was living in Kier in 1998 when the government attacked his village with infantry units and heavy bombers. See id. at ¶ 2(f). During the attack, civilians were killed and children were sold into slavery. See id. ¶ 2(f). Cluol fled the area, first to Ethiopia and later to the United States. See id. at ¶ 2(f).
Plaintiffs filed their class action complaint on November 11, 2001, and filed an amended complaint on February 25, 2002. Plaintiffs seek a declaration that defendants have violated international law; an injunction restraining defendants from continuing to cooperate in committing "ethnic cleansing" against non-Muslim, African Sudanese; compensatory damages from both defendants;. punitive damages from Talisman; and attorneys' fees. Talisman moves to dismiss this action on the basis of lack of subject matter jurisdiction, lack of personal jurisdiction, lack of standing (of plaintiffs), forum non conveniens, international comity, act of state doctrine, political question doctrine, failure to join necessary and indispensable parties, and on the grounds that equity does not require a useless act.
A. Nature of the Alleged Violations of International Law
1. History of the Alien Tort Claims Act
The primary basis for asserting the Court's jurisdiction is 28 U.S.C. § 1350, otherwise known as the Alien Tort Claims Act ("ATCA").*fn11 The ATCA itself is succinct and simple on its face:
The district courts shall have original jurisdiction
of any civil action by an alien for a tort only,
committed in violation of the law of nations or a
treaty of the United States.
28 U.S.C. § 1350.*fn12
Notwithstanding its brevity, however, the ATCA has dramatically altered the legal landscape. The statute was passed by the first Congress as part of the Judiciary Act of 1789.*fn13
See Lawrence W. Newman & David Zaslowsky, The Alien Tort Claims Act: How Far Will it Go?, N.Y.L.J., Jan. 2, 2003, at 3. Despite the fact that the ATCA has existed for over two hundred years, little is known of the framers' intentions in adopting it — the legislative history of the Judiciary Act does not refer to section 1350. See Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88
, 105 n. 10 (2d Cir. 2000). Judge Friendly proclaimed that "[t]his old and little used section is a kind of legal Lohengrin; although it has been with us since the first Judiciary Act [. . .], no one seems to know whence it came." IIT v. Vencap, Ltd., 519 F.2d 1001
, 1015 (2d Cir. 1975).
As Judge Friendly noted, the ATCA was only invoked a handful of times for nearly two hundred years. That changed with the landmark case of Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). In that case, two Paraguayan citizens living in the United States brought an action for wrongful death against a Paraguayan police official who had allegedly tortured and killed the son and brother of the plaintiffs. The Second Circuit reversed the district court's dismissal for lack of subject matter jurisdiction and held that the ACTA provided a means of redress for violations of international law, such as the right to be free from torture. In this sense, the Filartiga court held that the ATCA does not grant new rights to aliens, but simply operated to open the federal courts "for adjudication of the rights already recognized by international law." Id. at 887. The Second Circuit's interpretation of the ACTA was intended to be a "small but important step in the fulfillment of the ageless dream to free all people from brutal violence." Id. at 890.
Filartiga proved to be a watershed opinion, catapulting a largely overlooked statute into the limelight as a means of vindicating rights under international law. Later decisions by both the Second Circuit and other courts have upheld and expanded the reasoning of the Filartiga court. See, e.g., Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995); Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000). An important aspect of this case is the nature of the alleged violations of international law. In order to be actionable under the Alien Tort Claims Act, a defendant's conduct must violate "well-established, universally recognized norms of international law." Kadic v. Karadzic, 70 F.3d 232, 232 (2d Cir. 1995) (quoting Filartiga v. Pena-Irala, 630 F.2d 876, 888 (2d Cir. 1980)). Courts must "interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today." See Kadic, 70 F.3d at 238 (quoting Filartiga, 630 F.2d at 881). This in turn requires an examination of what international law is.
2. Sources of International Law
Perhaps the most widely-quoted enunciation of the sources of international law is found in the Statute of the International Court of Justice ("ICJ"). According to the Statute, the sources are as follows:
a. international conventions, whether general or
particular, establishing rules expressly recognized by
the contesting states;
b. international custom, as evidence of a general
practice accepted as law;
c. the general principles of law recognized by
d. subject to the provisions of Article 59, judicial
decisions and the teachings of the most highly
qualified publicists of the various nations, as
subsidiary means for the determination of rules of
ICJ STAT. art. 38(1).*fn14
The Second Circuit has cited Article 38(1) as an authoritative reflection of the sources of international law. See Filartiga v. Pena-Irala, 630 F.2d 876
, 881 n. 8 (2d Cir. 1980). The Supreme Court's articulation of the sources of international law is similar. See, e.g., The Paquete Habana, 175 U.S. 677
, 700 (1900); United States v. Smith, 18 U.S. (5 Wheat.) 153, 160-61 (1820).
However, unlike the International Court of Justice, which does not operate on the basis of stare decisis*fn15 or the Supreme Court, which can choose whether or not to follow its own precedent, this Court, as an inferior court, is obligated to accept the law as it has been interpreted by the Supreme Court and Second Circuit. This is no less true with respect to questions of international law than any other question of law. Therefore, in addition to the sources of international law listed above, another must be added — interpretations of international law of superior courts. See, e.g., United States v. Smith, 18 U.S. (5 Wheat.) 153, 160-61 (1820), quoted in Filartiga v. Pena, 630 F.2d 876, 880 (2d Cir. 1980) (the law of nations may be ascertained by consulting, inter alia, "judicial decisions recognising and enforcing [international law]"); Hilton v. Guyot, 16 S.Ct. 139, 163 (1895) (in the absence of written international law, "the courts must obtain such aid as they can from [. . .] judicial decisions."). Consequently, in this Court, the decisions of the Supreme Court and Second Circuit reflect the state of international law in addition to the traditional sources listed in the Statute of the International Court of Justice.
3. Jus Cogens Violations of International Law
The allegations in the Amended Complaint include charges of genocide, war crimes, torture, and enslavement.*fn16 See Amended Complaint at ¶¶ 1, 14, 15, 21, 23, 26, 30-33, 35-48, 58, 60-62. It is not disputed that such acts violate universally-recognized norms of international law (though Talisman contends that corporations are not legally capable of violating international law). States practicing, encouraging, or condoning genocide, slavery or the slave trade, extrajudicial killings, torture, or systematic racial discrimination violate international law. See, e.g., RESTATEMENT (THIRD) OF FOREIGN RELATIONS § 702 (1987). Individuals committing such acts may also be liable under international law. See, e.g., Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995) (holding that individuals may violate international law by committing acts of genocide, war crimes, or torture).
These types of acts alleged in the Amended Complaint are qualitatively different from other types of violations of international law. 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. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS § 702 cmt. n (1987) (stating that acts of genocide, slavery, and extrajudicial killing violate jus cogens norms); Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 717 (9th Cir. 1992); Tachiona v. Mugabe, No. 00 Civ. 6666 (VM), 2002 WL 31799018, at *9 (S.D.N.Y. Dec. 11, 2002). See also Declaration of James Crawford, S.C., at ¶ 37 ("The prohibitions against genocide, torture and slavery are peremptory norms of general international law [. . .].").
Violations of jus cogens norms constitute violations of obligations owed to all ("erga omnes"). See RESTATEMENT (THIRD) OF FOREIGN RELATIONS § 702 cmt. o (1987). See also id. at § 404:
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, slave trade, attacks on or hijacking of
aircraft, genocide, war crimes, and perhaps certain
acts of terrorism even where [no other basis of
jurisdiction] is present.
In other words, states may exercise universal jurisdiction over acts committed in violation of jus cogens norms.*fn17
This universal jurisdiction extends not merely to criminal liability but may also extend to civil liability. See id. at § 404 cmt. b. In addition to triggering the potentially universal exercise of jurisdiction, jus cogens violations may entail not only state but individual responsibility. For example, it is well-established in the post-World War II world that individuals may be held liable for acts of genocide, war crimes, or torture. See, e.g., Kadic v. Karadzic, 70 F.3d 232, 241-42 (2d Cir. 1995).
The significance of this discussion is to emphasize that jus cogens violations of international law such as are alleged here are fundamentally different in character than other types of international law violations.*fn18 The fact that they are treated differently under international law (by permitting states to exercise universal jurisdiction over these crimes, and by entailing individual responsibility) reflects the fact that these acts are offenses of universal concern by virtue of the "depths of depravity the conduct encompasses, the often countless toll of human suffering the misdeeds inflict upon their victims, and the consequential disruption of the domestic and international order they produce." Tachiona v. Mugabe, No. 00 Civ. 6666 (VM), 2002 WL 31799018, at *9 (S.D.N.Y. Dec. 11, 2002).
B. The Court Has Subject Matter Jurisdiction Under the ATCA
Talisman moves pursuant to FED. R. CIV. P. 12(b)(1) to dismiss for lack of subject matter jurisdiction. It is not disputed that in considering a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(1), a court must assume as true factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. See, e.g., Merritt v. Shuttle, 245 F.3d 182, 186 (2d Cir. 2001). Plaintiffs claim jurisdiction in this case pursuant to 28 U.S.C. § 1330 (actions against foreign states), 1331 (federal question), and 1350 (alien's action for tort). The instant motion to dismiss is made by Talisman only. Therefore, 28 U.S.C. § 1330, which is exclusively concerned with suits against foreign states, is not relevant to the instant discussion. The question is whether the Court has subject matter jurisdiction under the other two purported bases — 28 U.S.C. § 1331 and 1350. The parties devote several pages of their briefs addressing the question of whether the Court has subject matter jurisdiction under 28 U.S.C. § 1350. In contrast, both parties relegate their discussion about jurisdiction under 28 U.S.C. § 1331 to a footnote. Consequently, the Court first addresses the central subject matter jurisdiction dispute — namely, whether jurisdiction lies under 28 U.S.C. § 1350.
Talisman contends that the Court must engage in a searching review of plaintiffs' allegations, at least for purposes of determining whether the Court has subject matter jurisdiction over this action. For support, Talisman turns to the Second Circuit's Kadic decision:
Because the Alien Tort Claims Act requires that
plaintiffs plead a "violation of the law of nations"
at the jurisdictional threshold, this statute requires
a more searching review of the merits to establish
jurisdiction than is required under the more flexible
"arising under" formula of section 1331. [. . .].
Thus, it is not a sufficient basis for jurisdiction to
plead merely a colorable violation of the law of
nations. There is no federal subject-matter
jurisdiction under the Alien Tort Act unless the
complaint adequately pleads a violation of the law of
nations (or treaty of the United States).
Kadic, 70 F.3d at 238 (citation omitted). Talisman claims that this language requires a Court to subject a complaint to elevated scrutiny with respect to whether or not plaintiffs allege that defendants have violated the law of nations. Talisman also claims that the Alien Tort Claims Act is similar to the Racketeer Influenced and Corrupt Organizations Act ("RICO") inasmuch as both statutes provide a civil remedy for underlying criminal acts. Talisman concludes that the elevated pleading requirements of RICO should apply to ATCA claims.
Talisman's conclusion that a court must conduct a searching review of an ATCA claim is far from self-evident. While it is true that the language of the ATCA does not contain the relatively flexible term "arising under," it does not necessarily follow that a strict pleading requirement should apply. The court's holding in Kadic certainly does not mandate that result. Indeed, Talisman ignores the fact that the Second Circuit, on a motion for rehearing, emphasized that "the Alien Tort [Claims] Act has a broad scope [. . .]." Kadic v. Karadzic, 74 F.3d 377, 378 (2d Cir. 1996).
Talisman's argument that the ATCA is similar to RICO and should therefore entail the same strict pleading requirement lacks precedential support. Pleading rules are governed by FED. R. Civ. P. 8(a), which requires merely a "short and plain statement of the grounds upon which the court's jurisdiction depends" and "a short and plain statement of the claim showing that the pleader is entitled to relief." Talisman does not suggest that an ATCA claim is subject to the strictures of FED. R. Civ. P. 9. It does argue, however, that the Court's strict RICO pleading requirements should "guide this Court in its inquiry into the sufficiency of plaintiffs' ATCA claims." Memorandum of Law in Support of Defendant Talisman Energy Inc.'s Motion to Dismiss ("Motion Brief"), at 3. However, as the Supreme Court recently noted in the employment discrimination context, a "requirement of greater specificity for particular claims is a result that `must be obtained by the process of amending the Federal Rules, and not by judicial interpretation.'" Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002).
It is unclear whether the "more searching review" contemplated in Kadic survived Swierkiewicz. Indeed, a prominent post-Swierkiewicz ATCA decision did not utilize a heightened pleading standard or "more searching review." See Wiwa v. Royal Dutch Petroleum Co., No. 96 Civ. 8386 (KMW), 2002 WL 319887, at *5 (S.D.N.Y. Feb. 28, 2002). In this case, however, the issue is moot, because the Court holds, infra, that it has subject matter jurisdiction over the action, whether or not a "more searching review" is utilized.
2. A Corporation is Capable of Violating the Law of Nations
Talisman contends that the Court lacks subject matter jurisdiction because corporations are legally incapable of violating the laws of nations. It argues that international law applies to states and in some cases to individuals, but that "the law of nations simply does not encompass principles of corporate liability." Motion Brief, at 4. Talisman relies primarily on affidavits submitted by two renowned international law scholars, James Crawford and Christopher Greenwood. Both scholars, consulting a variety of international sources, conclude that there is no basis in existing international law for the liability of corporations. Nonetheless, a considerable body of United States and international precedent indicates that corporations may be liable for violations of international law, particularly when their actions constitute jus cogens violations.
a. United States Precedent
As noted supra, interpretations of international law of the Supreme Court and Second Circuit are binding upon this Court. Talisman fails to cite a single Supreme Court, Second Circuit, or even Southern District of New York case holding that a corporation is "legally incapable of violating the law of nations." Motion Brief, at 4. Similarly, Messrs. Crawford and Greenwood, while citing a variety of international law sources, fail, to cite a single United States case upholding their position. In fact, numerous Second Circuit cases, as well as cases from courts outside the Second Circuit, make it clear that corporations can be held liable for jus cogens violations.
i. Second Circuit Precedent
Neither party cites any Supreme Court decision for the proposition that corporations are or are not potentially liable under the ATCA for violations of international law, nor is the Court aware of any such decision.*fn19 Therefore, the Court is obligated to follow the Second Circuit's interpretation of international law. While the Supreme Court has not yet addressed the question of whether corporations may be liable for international law violations under the ATCA, the Second Circuit has.*fn20 Indeed, since Filartiga, the Second Circuit has led the nation in ATCA jurisprudence. Clear and consistent Second Circuit precedent demonstrates that corporations may be held liable for jus cogens violations of international law.
As noted supra, the transformation of the ATCA from an obscure statute passed by the first Congress to a widely-used tool to vindicate international law violations began with Filartiga. In that case, the Second Circuit reaffirmed that United States courts are, in the absence of a congressional enactment, "bound by the law of nations, which is a part of the law of the land." Filartiga, 630 F.2d at 887 (quoting The Nereide, 13 U.S. (9 Cranch) 388, 422 (1815)). After conducting an examination of international law, the court held that deliberate torture perpetrated under the color of law violated universally accepted rules of international law. Consequently, the Second Circuit reversed the district court's determination that subject matter jurisdiction did not lie in that action.
A second watershed case in the development of ATCA jurisprudence was Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995). In Filartiga, the alleged acts of torture that violated international law were committed by an individual who acted under color of official authority. This left open the question of whether non-governmental actors could be culpable under the ATCA. Defendant Karadzic was the president of the self-proclaimed Republika Srpska, the Bosnian Serb entity. In Kadic, Karadzic argued (inconsistently) that while he was the president of the entity, he was not an official in any government. See Kadic, 70 F.3d at 239. The district court held that Karadzic was not acting under color of law because the Republika Srpska, even if a state, was not recognized by other states. See Kadic, 70 F.3d at 239 n. 2. On that basis, it dismissed the action, accepting Karadzic's contention that "acts committed by non-state actors do not violate the law of nations." Kadic, 70 F.3d at 239 (quoting Doe v. Karadzic, 866 F. Supp. 734, 739 (S.D.N.Y. 1994)).
The Second Circuit reversed the district court. In its ruling, the Second Circuit flatly rejected the notion that the reach of international law was limited to states and those acting under color of state law:
We do not agree that the law of nations, as understood
in the modern era, confines its reach to state
action. Instead, we hold that certain forms of conduct
violate the law of nations whether undertaken by those
acting under the auspices of a state or only as
Kadic, 70 F.3d at 239. The Second Circuit noted that historically the law of nations had been applied to certain acts of individuals, such as piracy. Pirates were considered hostis humani generis (an enemy of mankind) in part because they acted without the pretense of state authority. See The Brig Malek Adhel, 43 U.S. (2 How.) 210, 232 (1844). Over time, slave traders grew to be considered enemies of mankind, subject to liability under international law. See Kadic, 70 F.3d at 239. In the modern era, the hijacker, war criminal and genocidaire have also come to be considered hostis humani generis. See Kadic, 70 F.3d at 240. The court concluded that "the inclusion of piracy and slave trade from an earlier era and aircraft hijacking from the modern era demonstrates that offenses of `universal concern' include those capable of being committed by non-state actors." Kadic, 70 F.3d at 240. These crimes of "universal concern" are synonymous with jus cogens violations discussed supra.
The Second Circuit went on to analyze specific crimes. It first looked at international jurisprudence concerning genocide, including declarations of the United Nations General Assembly and the Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 277, entered into force Jan. 12, 1951, for the United States Feb. 23, 1989 ("Genocide Convention"). In particular, the court noted that under the Genocide Convention, "Persons committing genocide or any of the other acts enumerated in article 3 shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals." Id. at art. 4. The Second Circuit held that the U.N. ...