                   FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

ALEXIS HOLYWEEK SAREI; PAUL E.           
NERAU; THOMAS TAMAUSI; PHILLIP
MIRIORI; GREGORY KOPA;
METHODIUS NESIKO; ALOYSIUS
MOSES; RAPHEAL NINIKU; GABRIEL
TAREASI; LINUS TAKINU, LEO WUIS;
MICHAEL AKOPE; BENEDICT PISI;
THOMAS KOBUKO; JOHN TAMUASI;
NORMAN MOUVO; JOHN OSANI; BEN                No. 02-56256
KORUS; NAMIRA KAWONA; JOANNE
BOSCO; JOHN PIGOLO; MAGDALENE
                                              D.C. No.
                                             CV-00-11695-
PIGOLO, individually and on behalf              MMM
of themselves and all others
similarly situated,
                Plaintiffs-Appellants,
                  v.
RIO TINTO, PLC; RIO TINTO
LIMITED,
              Defendants-Appellees.
                                         




                             16439
16440               SAREI v. RIO TINTO, PLC



ALEXIS HOLYWEEK SAREI; PAUL E.           
NERAU; THOMAS TAMAUSI; PHILLIP
MIRIORI; GREGORY KOPA;
METHODIUS NESIKO; ALOYSIUS
MOSES; RAPHEAL NINIKU; GABRIEL
TAREASI; LINUS TAKINU, LEO WUIS;
MICHAEL AKOPE; BENEDICT PISI;
THOMAS KOBUKO; JOHN TAMUASI;                  No. 02-56390
NORMAN MOUVO; JOHN OSANI; BEN                   D.C. No.
KORUS; NAMIRA KAWONA; JOANNE
BOSCO; JOHN PIGOLO; MAGDALENE
                                             CV-00-11695-
                                                 MMM
PIGOLO, individually and on behalf
of themselves and all others                   OPINION
similarly situated,
                 Plaintiffs-Appellees,
                  v.
RIO TINTO, PLC; RIO TINTO
LIMITED,
             Defendants-Appellants.
                                         
         Appeal from the United States District Court
            for the Central District of California
        Margaret M. Morrow, District Judge, Presiding

                   Argued and Submitted
         October 11, 2007—San Francisco, California

                   Filed December 16, 2008

       Before: Mary M. Schroeder, Harry Pregerson,
Stephen Reinhardt, Andrew J. Kleinfeld, Barry G. Silverman,
        M. Margaret McKeown, Marsha S. Berzon,
Johnnie B. Rawlinson, Consuelo M. Callahan, Carlos T. Bea,
            and Sandra S. Ikuta, Circuit Judges.
    SAREI v. RIO TINTO, PLC       16441
 Opinion by Judge McKeown;
  Concurrence by Judge Bea;
    Dissent by Judge Ikuta;
Concurrence by Judge Kleinfeld;
  Dissent by Judge Reinhardt
                  SAREI v. RIO TINTO, PLC            16443


                       COUNSEL

Steve W. Berman (argued), R. Brent Walton, and Nick
Styant-Browne, Hagens Berman LLP, Seattle, Washington;
Paul Luvera and Joel D. Cunningham, Luvera, Barnett, Brind-
ley, Beninger & Cunningham, Seattle, Washington; and Paul
Stocker, Mill Creek, Washington, for plaintiffs-
appellants/cross-appellees.
16444               SAREI v. RIO TINTO, PLC
James J. Brosnahan, Jack W. Londen (argued), and Peter J.
Stern, Morrison & Foerster LLP, San Francisco, California,
for defendants-appellees/cross-appellants.

Robert M. Loeb (argued), U.S. Department of Justice, Wash-
ington, DC, for amicus curiae the United States of America.


                           OPINION

McKEOWN, Circuit Judge, joined by Judges SCHROEDER
and SILVERMAN:

   Current and former residents of Bougainville, Papua New
Guinea (“PNG”), brought suit under the Alien Tort Statute
(“ATS”), claiming that various war crimes, crimes against
humanity, racial discrimination, and environmental torts arose
out of Rio Tinto’s mining operations on Bougainville. Plain-
tiffs allege Rio Tinto is liable not only for its actions that led
to a civil war, but also vicariously for those of the PNG gov-
ernment, acting as Rio Tinto’s agent or partner.

   This case raises an important question of the role of
exhaustion under the ATS, which bestows jurisdiction on
United States courts for “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. Although the ATS
does not itself require an alien to exhaust local remedies
before invoking the jurisdiction of our courts, the Supreme
Court signaled in Sosa v. Alvarez-Machain that a prudential
or judicially-imposed exhaustion requirement for ATS claims
“would certainly [be considered] in an appropriate case.” 542
U.S. 692, 733 n.21 (2004). The application of Sosa to exhaus-
tion under the ATS is a matter of first impression in this cir-
cuit, and we hold that this is “an appropriate case” to consider
whether to invoke the exhaustion analysis.
                       SAREI v. RIO TINTO, PLC                       16445
   Although we decline to impose an absolute requirement of
exhaustion in ATS cases, we conclude that, as a threshold
matter, certain ATS claims are appropriately considered for
exhaustion under both domestic prudential standards and core
principles of international law.1 Where the “nexus” to the
United States is weak, courts should carefully consider the
question of exhaustion, particularly— but not exclusively—
with respect to claims that do not involve matters of “univer-
sal concern.” Matters of “universal concern” are offenses “for
which a state has jurisdiction to punish without regard to terri-
toriality or the nationality of the offenders.” Kadic v.
Karadzic, 70 F.3d 232, 240 (2d Cir. 1995) (citing Restatement
(Third) Foreign Relations Law of the United States § 404
(1987) (“Restatement (Third)”)). Because the district court
did not analyze exhaustion as a discretionary matter, we
remand for the district court to address this issue in the first
instance, using the framework outlined below.

                             BACKGROUND2

   Bougainville is an island in the South Pacific located just
off the main island of PNG. Rich in natural resources, includ-
ing copper and gold, the island was targeted as a prime min-
  1
     See Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 127 S. Ct.
1184, 1191 (2007) (holding “a federal court has leeway to choose among
threshold grounds for denying audience to a case on the merits” (internal
quotation marks omitted)). Although Judge Ikuta “see[s] no basis for hold-
ing that the district court erred by failing to consider exhaustion before
other threshold issues,” Ikuta Dissent at 16468, exhaustion stands on dif-
ferent footing than a decision, for example, on political question or act of
state grounds. As a prudential matter, in this case there is a certain logic
to considering exhaustion before considering threshold grounds that may
“deny[ ] audience to a case on the merits.” Sinochem Int’l Co., 127 S. Ct.
at 1191.
   2
     This background is drawn from the complaint; at this stage, we accept
plaintiffs’ allegations as true. Alperin v. Vatican Bank, 410 F.3d 532, 541
(9th Cir. 2005). A more detailed articulation of the facts is found in the
district court’s thoughtful and extensive opinion. See Sarei v. Rio Tinto,
221 F. Supp. 2d 1116, 1121-30 (C.D. Cal. 2002).
16446               SAREI v. RIO TINTO, PLC
ing site by defendants Rio Tinto, plc, a British and Welsh
corporation, and Rio Tinto Limited, an Australian corporation
(collectively “Rio Tinto”). Rio Tinto is part of an international
mining group that operates over sixty mines and processing
plants in forty countries, including the United States. To oper-
ate a mine on Bougainville, Rio Tinto required and received
the assistance of the PNG government. According to the com-
plaint, beginning in the 1960s, Rio Tinto displaced villages,
razed massive tracts of rain forest, intensely polluted the land,
rivers, and air (with extensive collateral consequences includ-
ing fatal and chronic illness, death of wildlife and vegetation,
and failure of farm land), and systematically discriminated
against its Bougainvillian workers, who lived in slave-like
conditions.

   In November 1988, some Bougainville residents revolted;
they sabotaged the mine and forced its closure. After Rio
Tinto demanded that the PNG government quash the uprising,
the government complied and sent in troops. PNG forces used
helicopters and vehicles supplied by Rio Tinto. On February
14, 1990, the country descended into a civil war after govern-
ment troops slaughtered many Bougainvillians in what has
come to be known as the “St. Valentine’s Day Massacre.”

   Unable to resume mining, Rio Tinto threatened to abandon
its operations and halt all future investment in PNG unless the
government took military action to secure the mine. In April
1990, the PNG government imposed a military blockade on
the island that lasted almost a decade. The blockade prevented
medicine, clothing, and other necessities from reaching the
residents. Under further pressure from Rio Tinto, according to
the complaint, the government engaged in aerial bombard-
ment of civilian targets, wanton killing and acts of cruelty,
village burning, rape, and pillage. As a result, an estimated
fifteen thousand Bougainvillians, including many children,
died. Of the survivors, tens of thousands are displaced and
many suffer health problems. In March 2002, the PNG Parlia-
ment formalized a peace accord that ended the civil war.
                    SAREI v. RIO TINTO, PLC                16447
   In November 2000, nearly a year and a half before the civil
war formally ended, plaintiffs filed this class action, raising
numerous claims under the ATS: (1) crimes against humanity
resulting from the blockade; (2) war crimes for murder and
torture; (3) violation of the rights to life, health, and security
of the person resulting from the environmental damage; (4)
racial discrimination in destroying villages and the environ-
ment, and in working conditions; (5) cruel, inhuman, and
degrading treatment resulting from the blockade, environmen-
tal harm, and displacement; (6) violation of international envi-
ronmental rights resulting from building and operating the
mine; and (7) a consistent pattern of gross violations of
human rights resulting from destruction of the environment,
racial discrimination, and PNG military activities. Plaintiffs
also raised various non-ATS claims ranging from negligence
to public nuisance.

   The district court determined plaintiffs stated various cog-
nizable ATS claims: war crimes, crimes against humanity,
racial discrimination, and violation of the United Nations
Convention on the Law of the Sea (“UNCLOS”). Sarei v. Rio
Tinto, PLC, 221 F. Supp. 2d 1116, 1149, 1151, 1155, 1162
(C.D. Cal. 2002). Nonetheless, the district court dismissed the
entire complaint as presenting nonjusticiable political ques-
tions. Id. at 1198-99. The court alternatively dismissed the
racial discrimination and environmental tort claims under the
act of state doctrine, id. at 1193, as well as the doctrine of
international comity, id. at 1207. Finally, it also held that the
ATS did not require exhaustion of local remedies, but did not
address exhaustion as a prudential or discretionary issue. Id.
at 1132-39.

   After the plaintiffs filed their notice of appeal, the Supreme
Court decided the landmark case of Sosa, which clarified that
the ATS is a jurisdictional statute and held that “federal courts
should not recognize private claims under federal common
law for violations of any international law norm with less def-
inite content and acceptance among civilized nations than the
16448               SAREI v. RIO TINTO, PLC
historical paradigms familiar when § 1350 was enacted.” 542
U.S. at 732. As noted, the Court also adverted for the first
time to exhaustion under the ATS.

   On appeal, a three-judge panel affirmed in part, reversed in
part, vacated in part, and remanded, with one judge dissent-
ing. Sarei, 487 F.3d at 1223-24. The majority held that the
district court had subject matter jurisdiction under the ATS
because plaintiffs alleged nonfrivolous jus cogens violations
for racial discrimination, war crimes, and crimes against
humanity, including any claims that rested on vicarious liabil-
ity. Id. at 1202. The panel concluded that the district court
erred when it dismissed plaintiffs’ claims as political ques-
tions. Id. at 1208. The panel further held that the district court
erred by dismissing the racial discrimination claim under the
act of state doctrine, and that the district court should recon-
sider its dismissal of the UNCLOS claim on this ground. Id.
at 1209-10. The panel remanded so the district court could
also reconsider its dismissal of the racial discrimination and
UNCLOS claims under the doctrine of international comity.
Id. at 1213.

   Finally, as to the issue that is the sole focus of this en banc
opinion, the panel majority held that the ATS does not require
exhaustion of local remedies. Id. at 1223. The court reasoned
that (1) the language of the statute does not require exhaus-
tion; (2) the legislative history contains no reference to
exhaustion or even to the ATS itself; (3) Congress’s inclusion
of an explicit exhaustion requirement in the Torture Victims
Protection Act of 1991 suggests that Congress did not intend
to require exhaustion of ATS claims; and (4) policy concerns
did not justify creating an exhaustion requirement as a matter
of judicial discretion. Id. at 1215, 1218, 1223.

   In dissent, Judge Bybee addressed only the exhaustion
issue. He concluded that international law requires exhaustion
of local remedies and that in the exercise of judicial discre-
                    SAREI v. RIO TINTO, PLC                16449
tion, our federal courts should require exhaustion. Id. at 1237
(Bybee, J., dissenting).

   Because this case presents a number of issues of excep-
tional importance, we ordered that it be heard en banc pursu-
ant to Circuit Rule 35-3. Sarei v. Rio Tinto, PLC, 499 F.3d
923 (9th Cir. 2007).

                           ANALYSIS

I.   EXHAUSTION IN ATS CASES

   As the Supreme Court directed in Sosa, exhaustion of local
remedies should “certainly” be considered in the “appropriate
case” for claims brought under the ATS. 542 U.S. at 733 n.21.
This is an appropriate case for such consideration under both
domestic prudential standards and core principles of interna-
tional law.

   [1] Here, the district court declined to consider imposing
exhaustion. The district court held that the ATS created a
domestic cause of action—a view shared by many courts
before Sosa—and that exhaustion of local remedies was not
required to state a claim, because the statute itself did not
explicitly incorporate exhaustion. Sarei, 221 F. Supp. 2d at
1138-39. The Supreme Court has since clarified that the ATS
is a jurisdictional statute that does not create a cause of action
and has noted the availability of exhaustion in an “appropriate
case.”

   The parties, the district court, and the panel majority and
dissent all analyzed the exhaustion question by initially asking
whether the ATS requires exhaustion. The inquiry as to
whether exhaustion is required by the statute leads with the
wrong foot post-Sosa.

  [2] Our starting point is the Court’s explicit reference to
exhaustion in Sosa:
16450                  SAREI v. RIO TINTO, PLC
     This requirement of clear definition is not meant to
     be the only principle limiting the availability of relief
     in the federal courts for violations of customary
     international law, though it disposes of this action.
     For example, the European Commission argues as
     amicus curiae that basic principles of international
     law require that before asserting the claim in a for-
     eign forum, the claimant must have exhausted any
     remedies available in the domestic legal system, and
     perhaps in other forums such as international claims
     tribunals. We would certainly consider this require-
     ment in an appropriate case.

542 U.S. at 733 n.21 (internal citations omitted). See also id.
at 760 (Breyer, J., concurring in part and in the judgment)
(“The Court also suggests that principles of exhaustion might
apply . . . .” (emphasis added)). Thus, the Court appears to
consider exhaustion a prudential “principle” among others
that courts should consider beyond the initial task of deter-
mining whether the alleged violations of the ATS satisfy the
“requirement of clear definition.” Id. at 733 n.21.3

  Approaching exhaustion as a prudential principle renders
unnecessary our wading into the debate whether the Torture
Victim Protection Act (“TVPA”), 28 U.S.C. § 1350, which
was adopted in 1991 and explicitly incorporates an exhaustion
requirement, offers insight into Congress’s intent to impose
   3
     Judge Bea posits that the Court was contemplating a mandatory
exhaustion requirement. Bea Concurrence at 16463-64. Judge Reinhardt
argues the Court did not signal a thing. Reinhardt Dissent at 16474. The
reality is that the Court neither mandated exhaustion nor said the principle
should be ignored. Given the debate over the language in Sosa and the fact
that neither the Court nor Congress has imposed a mandatory exhaustion
requirement under the ATS, prudential exhaustion best reflects a cautious
and practical resolution. Approaching exhaustion as a prudential principle
countenances—and attempts to reconcile—many of the competing con-
cerns expressed in both Judge Bea’s concurrence and Judge Reinhardt’s
dissent.
                        SAREI v. RIO TINTO, PLC                       16451
the same requirement in the context of the ATS, which was
enacted in 1789. See Sarei, 487 F.3d at 1215-19; id. at 1227-
30 (Bybee, J., dissenting).4 Not only does this TVPA compari-
son not particularly forward the discussion, Sosa’s pronounce-
ment relieves us of the need to engage in the comparison in
the first place.

   [3] Prudential exhaustion also avoids another jurispruden-
tial debate remaining in the wake of Sosa: whether exhaustion
is a substantive norm of international law, to which the “re-
quirement of clear definition” applies; or if it is nonsubstantive,5
what source of law—federal common law or international law
—illuminates its content. See Sarei, 487 F.3d at 1221. Though
Sosa is vague on this broad question of methodology, it
unambiguously states that the “requirement of clear defini-
tion” of an international norm is distinct from the consider-
ation of other factors that might also serve to limit the relief
available through the ATS. 542 U.S. at 733 n.21. In the
absence of any further comment by the Supreme Court, it is
fair to assume (at least for the purposes of exhaustion) that we
may freely draw from both federal common law and interna-
tional law without violating the spirit of Sosa’s instructions or
committing ourselves to a particular method regarding other
  4
     Judge Bybee’s dissent to the panel opinion is thorough and scholarly.
Although drawing on his reasoning and analysis, we do not subscribe to
his approach in toto because it would impose exhaustion as an absolute
requirement in ATS cases.
   5
     According to several commentators, this division is an issue “on which
much intellectual energy has been wasted,” so we need not add to the mix.
See Robert Rosenstock & Margo Kaplan, Current Development: The
Fifty-Third Session of the International Law Commission, 96 Am. J. Int’l
L. 412, 417 (2002) (discussing exhaustion in the context of diplomatic
protection, and noting Special Rapporteur’s analysis, which distinguishes
cases where the failure to provide a local remedy is part of the underlying
wrong, making the rule substantive, from cases where a subsequent act,
such as the denial of justice, creates a wrong that incurs the right of diplo-
matic protection, making the rule procedural); see also Sarei, 487 F.3d at
1234-36 (Bybee, J. dissenting).
16452                  SAREI v. RIO TINTO, PLC
nonsubstantive aspects of ATS jurisprudence left open after
Sosa.

II.   PRUDENTIAL EXHAUSTION

   Judicially-imposed or prudential exhaustion is not a prereq-
uisite to the exercise of jurisdiction, but rather is “one among
related doctrines—including abstention, finality, and ripeness
—that govern the timing of federal-court decisionmaking.”
McCarthy v. Madigan, 503 U.S. 140, 144 (1992), superceded
by statute as stated in Booth v. Churner, 532 U.S. 731, 732
(2001). Although some statutory exhaustion requirements are
jurisdictional in nature,6 prudential exhaustion originated in
habeas corpus cases to serve a gatekeeping function prevent-
ing “unnecessary conflict between [federal and state] courts
equally bound to guard and protect rights secured by the
[C]onstitution.” Ex parte Royall, 117 U.S. 241, 251 (1886);
see also Hemphill v. Moseley, 443 F.2d 322, 323 (10th Cir.
1971) (applying exhaustion in habeas case originating in mili-
tary court system). Exhaustion in this context has been
described as “grounded in principles of comity.” Castille v.
Peoples, 489 U.S. 346, 349 (1989).

   The principle of comity also underlies the requirement of
tribal court exhaustion. See Iowa Mut. Ins. Co. v. LaPlante,
480 U.S. 9, 14-15 (1987) (quoting United States v. Mazurie,
419 U.S. 544, 557 (1975)) (“[Exhaustion] reflects the fact that
Indian tribes retain ‘attributes of sovereignty over both their
members and their territory.’ ”). Invoking exhaustion out of
  6
   See, e.g., Weinberger v. Salfi, 422 U.S. 749, 764-67 (1975) (holding 42
U.S.C. § 405(h) of the Social Security Act contains a jurisdictional
exhaustion requirement); Platte River Whooping Crane Critical Habitat
Maint. Trust v. FERC, 876 F.2d 109, 112-13 (D.C. Cir. 1989) (interpreting
Federal Power Act statute, 16 U.S.C. § 825l(b), to provide a jurisdictional
exhaustion requirement); Lindsey v. U.S., 448 F. Supp. 2d 37, 51 (D.D.C.
2006) (interpreting provision of the Internal Revenue Code, 26 U.S.C.
§ 7422(a), as imposing a jurisdictional exhaustion requirement).
                        SAREI v. RIO TINTO, PLC                      16453
respect for another sovereign, as we do in the case of tribal
courts, resonates most forcefully in the international context.

III.   THE EXHAUSTION OF LOCAL REMEDIES RULE IN
       INTERNATIONAL LAW

   “Under international law, ordinarily a state is not required
to consider a claim by another state for an injury to its
national until that person has exhausted domestic remedies,
unless such remedies are clearly sham or inadequate, or their
application is unreasonably prolonged.” Restatement (Third)
§ 713 cmt. f; see also id. § 703 cmt. d; Interhandel Case
(Switz. v. U.S.), 1959 I.C.J. 6, 26 (Mar. 29) (“The rule that
local remedies must be exhausted before international pro-
ceedings may be instituted is a well-established rule of cus-
tomary international law.”).7 The rule is generally applied
when one state pursues the cause of one of its nationals,
whose rights another state has disregarded in violation of
international law: “Before resort may be had to an interna-
tional court in such a situation, it has been considered neces-
sary that the State where the violation occurred should have
an opportunity to redress it by its own means, within the
framework of its own domestic legal system.” Interhandel,
1959 I.C.J. at 27; see also Restatement (Third) §§ 703 cmt. d,
713 cmt. f.

   Because sovereigns are co-equal in the international legal
   7
     The United States accepted compulsory jurisdiction of the International
Court of Justice (“ICJ”), a judicial organ of the United Nations, until 1986,
when, in the wake of the ICJ’s exercise of jurisdiction over a suit brought
against the United States by Nicaragua, the United States withdrew its
consent to compulsory jurisdiction. See Letter from George P. Schultz,
Secretary of State of the United States of America, to Javier Perez de
Cuellar, Secretary-General of the United Nations (Oct. 7, 1985), reprinted
in 24 I.L.M. 1742 (1985). Now, the United States accepts jurisdiction of
the ICJ on a case-by-case basis or in particular treaties. See Statute of the
International Court of Justice, art. 36, para. 1, June 26, 1945, 156 U.N.T.S.
77.
16454                  SAREI v. RIO TINTO, PLC
arena, one sovereign can exercise power over another only
through consent. See United States v. Diekelman, 92 U.S. 520,
524 (1875) (“[A sovereign’s] own dignity, as well as the dig-
nity of the nation he represents, prevents his appearance to
answer a suit against him in the courts of another sovereignty,
except in performance of his obligations, by treaty or other-
wise, voluntarily assumed.”). Even in the face of sovereigns’
consent to the jurisdiction of international tribunals, principles
of comity have dictated that exhaustion remains a require-
ment. Thus, for example, the treaties establishing international
human rights courts have codified the exhaustion principle in
their statutes as a general requirement for the admissibility of
complaints. See, e.g., The Matter of Viviana Gallardo et al,
Series A., No. G 101/81, Inter-Am. C.H.R., Nov. 13, 1981,
¶ 26 (“[Exhaustion] is designed for the benefit of the State,”
because it “excuse[s] the State from having to respond to
charges before an international body for acts imputed to it
before it has had the opportunity to remedy them by internal
means.”).8

   Nonetheless, codification of the exhaustion requirement in
international treaties is not in absolute terms. International
law—both private and public—has long anticipated that local
remedies might not always be adequate and that justice may
be denied if claimants are forced to exhaust before being
heard in an international forum. Restatement (Third) §§ 703
cmt. d, 713, cmt. f. A core element of the exhaustion rule is
its futility, or denial of justice exception, which excuses
  8
    See also The European Convention for the Protection of Human Rights
and Fundamental Freedoms, art. 35, Nov. 4, 1950, 213 U.N.T.S. 222
(“The Court may only deal with the matter after all domestic remedies
have been exhausted, according to the generally recognised rules of inter-
national law.”); The American Convention on Human Rights, art. 46, Nov.
22, 1969, 1144 U.N.T.S. 143 (“Admission by the Commission of a peti-
tion or communication . . . shall be subject to the following requirements:
that the remedies under domestic law have been pursued and exhausted in
accordance with generally recognized principles of international law.”).
                    SAREI v. RIO TINTO, PLC                16455
exhaustion of local remedies where they are unavailable or
inadequate. Id.

   United States courts have also recognized the futility
exception with regard to human rights claims, see, e.g., Hilao
v. Estate of Marcos, 103 F.3d 767, 778 n.5 (9th Cir. 1996)
(discussing Senate Report for the TVPA, which places the
burden on the plaintiff to show that the local remedies were
“ineffective, unobtainable, unduly prolonged, inadequate, or
obviously futile”), as well as in more routine matters, such as
tax, see, e.g., Newcomb v. Comm’r, 23 T.C. 954, 960-61
(1955) (“We do not think that if respondent had attempted to
pursue any remedies in the Canadian courts he would have
met with any success. The courts do not require one to do a
useless act.”).

IV.   CONSIDERATIONS ANIMATING EXHAUSTION

   Though it is self-evident, it is worth remembering that in
ATS adjudication, the United States courts are not interna-
tional tribunals. With this in mind, the appropriateness of
applying prudential exhaustion to some ATS cases only gains
force; if exhaustion is considered essential to the smooth
operation of international tribunals whose jurisdiction is
established only through explicit consent from other sover-
eigns, then it is all the more significant in the absence of such
explicit consent to jurisdiction.

   Certain ATS cases, like this one, present United States
courts with scenarios that simultaneously appeal to two diver-
gent impulses that have traditionally played out in our coun-
try’s international affairs and have been imported into our
legal system. The first impulse is to safeguard and respect the
principle of comity. See Societe Nationale Industrielle Aeros-
patiale v. United States Dist. Court for S. Dist. of Iowa, 482
U.S. 522, 544 n.27 (1987) (“Comity refers to the spirit of
cooperation in which a domestic tribunal approaches the reso-
lution of cases touching the laws and interests of other sover-
16456               SAREI v. RIO TINTO, PLC
eign states.”). The second is the American role in establishing
collective security arrangements that support international
institutions, including international tribunals. See, e.g., Char-
ter of the International Military Tribunal, art. 1, Aug. 8, 1945
(The United States, along with the Allied powers, collectively
establishing the Tribunal “for the just and prompt trial and
punishment of major war criminals of the European Axis.”).
Both impulses draw from the recognition that we need a com-
plement to our domestic system, because we are but one
member in a community of nations. In that community, inter-
national law plays a substantive role.

   But international law also imposes limits. The lack of a sig-
nificant United States “nexus” to the allegations here stimu-
lates the comity impulse. These claims involve a foreign
corporation’s complicity in acts on foreign soil that affected
aliens (though at least one of them—Sarei—has enjoyed the
status of a lawful permanent resident of this country for some
time now). This situation thus lacks the traditional bases for
exercising our sovereign jurisdiction to prescribe laws,
namely nationality, territory, and effects within the United
States. See Restatement (Third) § 403(2) at cmt. d. (stating
jurisdiction is appropriately exercised with respect to activity
outside the state that has or intends to have substantial effect
within the state’s territory). The lack of a significant U.S.
“nexus” is an important consideration in evaluating whether
plaintiffs should be required to exhaust their local remedies in
accordance with the principle of international comity.

   The nature of certain allegations and the gravity of the
potential violations of international law also trigger the sec-
ond impulse: our historical commitment to upholding custom-
ary international law. Some of the claims—torture, crimes
against humanity, and war crimes—may implicate matters of
“universal concern,” generally described as offenses “for
which a state has jurisdiction to punish without regard to terri-
toriality or the nationality of the offenders.” Kadic, 70 F.3d at
240 (citing Restatement (Third) § 404); see also Wiwa v.
                       SAREI v. RIO TINTO, PLC                     16457
Royal Dutch Petroleum Co., 226 F.3d 88, 108 (2d Cir. 2000)
(holding “the policy expressed in the TVPA favoring adjudi-
cation of claims of violations of international prohibitions on
torture” weighed against dismissing the action on forum non
conveniens grounds).

   Nonetheless, simply because universal jurisdiction might be
available, does not mean that we should exercise it. Indeed,
the basis for exercising universal civil jurisdiction, such as
under the ATS, is not as well-settled as the basis for universal
criminal jurisdiction. See Sosa, 542 U.S. at 761-63 (Breyer,
J., concurring in part and in the judgment) (noting the lack of
“similar procedural consensus supporting the exercise of
jurisdiction” in ATS cases as obtained to piracy in the 18th
century or the contemporary exercise of universal criminal
jurisdiction over matters of universal concern).9 Even the few
courts that have exercised some form of universal criminal
jurisdiction over matters of “universal concern” have done so
cautiously. See Cedric Ryngaert, Applying the Rome Statute’s
Complementarity Principle: Drawing Lessons from the Prose-
cution of Core Crimes by States Acting under the Universality
Principle, 19 Crim. L.F. 153, 155-73 (2006) (surveying deci-
sions by Austria, Belgium, France, Germany, and Spain).

   This caution counsels that in ATS cases where the United
States “nexus” is weak, courts should carefully consider the
question of exhaustion, particularly—but not exclusively—
with respect to claims that do not involve matters of “univer-
sal concern.” With these underlying principles in place, we
suggest a framework for evaluating exhaustion.

  V.    A FRAMEWORK FOR EVALUATING EXHAUSTION

  [4] To begin, exhaustion under the ATS should be
  9
   See Sosa, 542 U.S. at 762-63 (Breyer, J., concurring in part and in the
judgment) (citing Brief Amicus Curiae the European Commission in Sup-
port of Neither Party, filed in Sosa, 2004 WL 177036, at *17-22).
16458               SAREI v. RIO TINTO, PLC
approached consistently with exhaustion principles in other
domestic contexts. The defendant bears the burden to plead
and justify an exhaustion requirement, including the availabil-
ity of local remedies. See Jones v. Bock, 127 S. Ct. 910, 919
(2007) (“[T]he usual practice under the Federal Rules is to
regard exhaustion as an affirmative defense.”). Although the
plaintiff may rebut this showing with a demonstration of the
futility of exhaustion, the ultimate burden remains with the
defendant. See, e.g., Honig v. Doe, 484 U.S. 305, 325-29
(1988) (allowing plaintiffs to by-pass administrative process
where exhaustion would be futile or inadequate).

  This same burden-shifting analysis is invoked under the
TVPA:

    [O]nce the defendant makes a showing of remedies
    abroad which have not been exhausted, the burden
    shifts to the plaintiff to rebut by showing that the
    local remedies were ineffective, unobtainable,
    unduly prolonged, inadequate, or obviously futile.
    The ultimate burden of proof and persuasion on the
    issue of exhaustion of remedies, however, lies with
    the defendant.

S.Rep. No. 102-249, at 9 (1991); accord Hilao, 103 F.3d at
778 n.5 (quoting TVPA Senate Report). While the TVPA is
not dispositive of the question of whether exhaustion is
required by the ATS, the TVPA nonetheless provides a use-
ful, congressionally-crafted template to guide our adoption of
an exhaustion principle for the ATS. See Enahoro v. Abuba-
kar, 408 F.3d 877, 890 (7th Cir. 2005) (Cudahy, J., dissent-
ing) (“[W]hile not directly applicable to the ATS, the TVPA
scheme is surely persuasive.”).

   [5] As a preliminary matter, to “exhaust,” it is not sufficient
that a plaintiff merely initiate a suit, but rather, the plaintiff
must obtain a final decision of the highest court in the hierar-
chy of courts in the legal system at issue, or show that the
                        SAREI v. RIO TINTO, PLC                      16459
state of the law or availability of remedies would make further
appeal futile. Chitharanjan Felix Amerasinghe, Local Reme-
dies in International Law 181 (2d ed. 1990); see also Inter-
handel, 1959 I.C.J. at 26-27 (analyzing, in determining
whether remedies had been exhausted, the stage of litigation
plaintiff had reached in United States courts).

   [6] Another basic element is that the remedy must be avail-
able, effective, and not futile. Restatement (Third) §§ 703
cmt. d, 713 cmt. f; see generally Amerasinghe, supra, at 166-
71, 187-207. To measure effectiveness, a court must look at
the circumstances surrounding the access to a remedy and the
ultimate utility of the remedy to the petitioner. Restatement
(Third) §§ 703 cmt. d, 713 cmt. f. In addition, “[w]hen a per-
son has obtained a favorable decision in a domestic court, but
that decision has not been complied with, no further remedies
need be exhausted.” Id. § 713 cmt. f. A judgment that cannot
be enforced is an incomplete, and thus ineffective, remedy.
The adequacy determination will also necessarily include an
assessment of any delay in the delivery of a decision. Ameras-
inghe, supra, at 203-06.

                               Conclusion

  [7] We remand to the district court for the limited purpose
to determine in the first instance whether to impose an
exhaustion requirement on plaintiffs.10

   Remanded for proceedings consistent with this opinion.



  10
     Six judges concur in a limited remand for the district court to consider
exhaustion. Because prudential exhaustion is a narrower ground of
exhaustion than statutory exhaustion—a statutory exhaustion analysis
must be applied in every case but a prudential exhaustion analysis only in
some cases—the plurality’s prudential exhaustion requirement controls.
See Marks v. United States, 430 U.S. 188, 193 (1977).
16460                   SAREI v. RIO TINTO, PLC
BEA, Circuit          Judge,      concurring,      joined      by    Judge
CALLAHAN:

   The plurality opinion holds judicial prudence requires the
district court to consider whether Sarei exhausted his local
remedies before filing his action in the United States. I concur
in the plurality’s conclusion that the district court erred by
failing to conduct an exhaustion analysis,1 and I agree a lim-
ited remand is the preferable solution. However, I think the
Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, and not mere
judicial prudence, requires the district court to consider
exhaustion, and I write separately to explain why.

   I read Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), dif-
ferently than does the plurality. In Sosa, the United States
Supreme Court explained the ATS is a jurisdictional statute
that does not create any substantive law; it simply provides a
forum for hearing existing causes of action that arise under
the law of nations, if such causes of action exist. See id. at 712
(“[W]e think that at the time of enactment the jurisdiction
[conferred by the ATS] enabled federal courts to hear claims
in a very limited category defined by the law of nations and
recognized at common law.”). Thus, the ATS does not create
   1
     As explained in this concurrence, I mean “exhaustion analysis” to
include the two-step process by which the district court considers (1)
whether Sarei had local remedies and has exhausted them, and, if not, (2)
whether the requirement Sarei must exhaust his local remedies is excused
because local remedies are ineffective, unobtainable, unduly prolonged,
inadequate, or otherwise futile to pursue. I understand the plurality’s “pru-
dential” exhaustion analysis to require a prior step in which the district
court must, in its discretion, choose whether even to reach the two-step
analysis described above, depending on considerations such as whether
Sarei’s claims have a close nexus to the United States, affect principles
favoring international comity and advancement of international institu-
tions, and implicate notions of customary international law. In contrast to
the plurality, I would hold the ATS requires the district court to engage
in the two-step exhaustion analysis, rather than allow the district court to
pick and choose whether claims of torts committed in foreign lands merit
such an analysis.
                       SAREI v. RIO TINTO, PLC                      16461
any cause of action of its own, but merely incorporates causes
of action that exist in “the present-day law of nations” and fit
into “18th-century paradigms,” Sosa, 542 U.S. at 725, as if
they were expressly written into the statute.2

   The plurality’s reasoning seems to be that although the
ATS incorporates causes of action recognized by the law of
nations, it does not incorporate required limitations on those
causes of action also recognized by the law of nations. This
doesn’t seem logical to me. Rather, it makes more sense to
interpret the ATS as incorporating the whole of the law of
nations: the rights it grants and the limitations it places on
those rights. See David H. Moore, An Emerging Uniformity
for International Law, 75 Geo. Wash. L. Rev. 1, 45 (2006)
(“If a claim is subject to an exhaustion requirement in interna-
tional law, it should not be incorporated without that limita-
tion.”).

   As Judge Bybee carefully demonstrates in his dissent from
the merits panel’s majority opinion, “[e]xhaustion is a well-
established principle of international law, recognized by
courts and scholars both here and abroad. It is so well
entrenched that one scholar has written that ‘the celebrated
rule of local remedies is accepted as a customary rule of inter-
national law [and] needs no proof today, as its basic existence
and validity has not been questioned’ . . . .” Sarei v. Rio Tinto,
PLC, 487 F.3d 1193, 1231 (9th Cir. 2007) (Bybee, J., dissent-
ing) (citation omitted).3
  2
     As I read Sosa, a court may not incorporate causes of action under the
ATS in a form substantively different from that recognized by the law of
nations. Thus, for instance, a court may not incorporate a torture cause of
action to include or exclude elements other than those recognized by cus-
tomary international law.
   3
     Judge Bybee’s dissent from the merits panel majority’s opinion details
the evidence that exhaustion has long been a part of the law of nations as
recognized in the United States and elsewhere, and I do not seek to repli-
cate his fine work here. Id. at 1231-37. Judge Bybee’s dissent, which I
16462                  SAREI v. RIO TINTO, PLC
   Judge Bybee’s dissent concludes that exhaustion’s “ ‘wide
and unchallenged acceptance is evidence of [the] utility and
of the soundness of [exhaustion’s] policy foundation’ ” in the
law of nations. Id. Since Judge Bybee filed his dissent, a num-
ber of other scholars4 have chimed in to recognize the manda-
tory nature of an exhaustion analysis under customary
international law. See, e.g., Rosica (Rose) Popova, Sarei v.
Rio Tinto and the Exhaustion of Local Remedies Rule in the
Context of the Alien Tort Claims Act: Short-Term Justice, But

heartily recommend the reader review, concludes “international law
requires exhaustion of local remedies . . . .” Id. at 1224-45. His dissent
explains that from the Jay Treaty of 1794, which normalized trade rela-
tions between an independent United States and Britain for the first time,
to the treaty creating the International Court of Justice and the founding
treaties of the European Union, exhaustion has been a commonly accepted
component of the law of nations for the past 200 years. Id. at 1231-32. He
cites dozens of scholars who have found exhaustion such an ineluctable
piece of the international legal norm they presume its necessity. Id. at
1234-37. He notes that almost all modern treaties require local exhaustion,
including the American Convention on Human Rights and the European
Convention for the Protection of Human Rights and Fundamental Free-
doms. Id. at 1232-34. In other words, Judge Bybee discovers that exhaus-
tion “is so well entrenched that . . . ‘[it] is accepted as a customary rule
of international law and needs no proof today, as its basic existence and
validity has not been questioned.’ ” Id. at 1231 (citation omitted).
   However, there is one aspect of Judge Bybee’s dissent with which I dis-
agree: once Judge Bybee decided the ATS required exhaustion as a statu-
tory matter, based on the ATS’s incorporation of customary international
law, there was no need to speculate as to whether there was an additional,
prudential basis for exhaustion. Indeed, I do not think the elements that go
into a prudential consideration, such as “nexus” or international comity,
see supra n.1, should be left to individual and potentially discordant trial
court determinations. The facts underpinning these prudential consider-
ations are generally undisputed; the determinations primarily involve judi-
cial policy with regard to international relations. Rather, as I hope to
explain in this concurrence, under the ATS the judicial policy of the courts
of the United States is clear: because it is a well-recognized requirement
in the law of nations, a two-step exhaustion analysis is mandatory.
   4
     Judge Bybee is a Senior Fellow in Constitutional Law at the William
S. Boyd School of Law, University of Nevada, Las Vegas.
                     SAREI v. RIO TINTO, PLC                16463
At What Cost?, 28 Hamline J. Pub. L. & Pol’y 517, 519
(2007) (explaining the “exhaustion requirement is a universal
and binding norm which should not be severed from the tradi-
tional law of nations as applied in American courts through
the [ATS]”); Emeka Duruigbo, Exhaustion of Local Remedies
in Alien Tort Litigation: Implications for International
Human Rights Protection, 29 Fordham Int’l L.J. 1245,
1247-48 (2006) (“The exhaustion of local remedies rule is a
well-known principle of customary international law . . . .
[that] has maintained a presence in the international legal sys-
tem for centuries. ‘Even for a rule of customary international
law, the local remedies rule has particularly deep roots.’ ”);
Richard Frimpong Oppong, Observing the Legal System of
the Community: The Relationship Between Community and
National Legal Systems Under the African Economic Commu-
nity Treaty, 15 Tul. J. Int’l & Comp. L. 41, 76 (2006) (refer-
ring to exhaustion of local remedies as a “traditional”
requirement of international law); Prof. Dr. Ernst-Ulrich
Petermann, Justice as Conflict Resolution: Proliferation,
Fragmentation, and Decentralization of Dispute Settlement in
International Trade, 27 U. Pa. J. Int’l Econ. L. 273, 304
(2006) (referring to the “traditional international law rules on
prior exhaustion of local remedies”). It seems to me that given
the ATS’s incorporation of the law of nations, this wide rec-
ognition of the customary exhaustion requirement critically
undermines the plurality’s conclusion that “[t]he inquiry as to
whether exhaustion is required by the [ATS] statute leads
with the wrong foot . . . .” Plurality Op. at 16449. Quite the
contrary.

   Indeed, as the Sosa Court observed, there are boundaries
other than a “clear definition” of an “international law norm”
that may “limit[ ] the availability of relief in the federal courts
[under the ATS] for violations of customary international law
. . . .” Id. at 732-33 & n.21. The Court mentioned two
expressly:

   (1) “[T]he European Commission argues . . . that basic
principles of international law require [exhaustion of local
16464                 SAREI v. RIO TINTO, PLC
remedies]. We would certainly consider this requirement in
an appropriate case.” Id. at 733 n.21 (emphasis added).

  (2) “Another possible limitation . . . is a policy of case-
specific deference to the political branches.” Id. (emphasis
added).

   A careful reading of this passage reveals the key words to
be “consider this requirement in an appropriate case.” The
Sosa Court did not reject the European Commission’s sugges-
tion that exhaustion is one of the “basic principles of interna-
tional law”; exhaustion simply had not been raised in that case.5
But if exhaustion is raised, and so the case is appropriate, it
would seem Sosa indicated the Court would consider exhaus-
tion as a requirement. “Deference to the political branches,”
on the other hand, is not required, but only “possible,” and
then only on a case-specific—i.e., prudential—basis.

   This distinction matters: because a district court has discre-
tion to waive a prudentially required exhaustion requirement,
but not a statutorily required one, see, e.g., Acevedo-Carranza
v. Ashcroft, 371 F.3d 539, 541 (9th Cir. 2004), the plurality’s
rule would permit a single district court judge to interject the
judiciary into ongoing international disputes and crises of for-
eign affairs. See Sarei, 487 F.3d at 1242-45 (Bybee, J., dis-
senting). This is critical in cases such as this one, where the
facts may be so appalling as to tug mightily on the heart but
the result of judicial intervention could be counterproductive.
Indeed, respect for other nations and a desire to encourage
diplomatic, rather than judicial, solutions is precisely why the
law of nations imposes an exhaustion requirement, and is why
“statutes should be read in accord with the customary defer-
ence to the application of foreign countries’ laws within their
own territories.” F. Hoffman-La Roche Ltd. v. Empagran S.A.,
542 U.S. 155, 176 (2004) (Scalia, J., concurring).
  5
    That is, no one claimed Dr. Alvarez-Machain first had to seek compen-
sation against the agents who kidnapped him in Mexico in Mexico.
                        SAREI v. RIO TINTO, PLC                      16465
   It is important to note that the exhaustion doctrine, which
I think is incorporated into the ATS, itself includes exceptions
to the requirement that a plaintiff exhaust his local remedies
—for instance, where prosecuting an action locally would be
futile or ineffective. Logically, these exceptions must also be
incorporated into the ATS. See Laura Niada, Hunger and
International Law: The Far-Reaching Scope of the Human
Right to Food, 22 Conn. J. Int’l L. 131, 194 (2006) (“[T]he
principle of exhaustion of domestic remedies demands that
these remedies have primacy in the enforcement of interna-
tional law. When a State, however, is not willing or able to
provide ordinary access to justice, the international arena may
be called in support.”). In other words, as part of the law of
nations’s exhaustion requirement, the futility excuse is also
incorporated into the ATS’s statutory exhaustion requirement.
Thus, a statutorily required two-step exhaustion analysis
would permit Sarei to prosecute his ATS claims without
exhausting his local remedies in Papua New Guinea if he can
prove that local remedies there are ineffective, unobtainable,
unduly prolonged, inadequate, or otherwise futile to pursue.

  I wish to make clear that a statutory exhaustion requirement
does not mean a plaintiff must prove in every case that he has
exhausted his local remedies. Rather, it means a district court
must conduct a two-step exhaustion analysis, in the process
considering whether first, local remedies exist, and second,
whether local exhaustion would be futile,6 unduly prolonged,
   6
     Judge Reinhardt’s dissent urges we accept that futility of exhaustion
was conclusively established by the declarations of Thomas Tapuri and
Frances Bom, filed nunc pro tunc as exhibits to Sarei’s opposition to Rio
Tinto’s motion to dismiss, which averred fear of physical harm if they
brought this action locally in Papua New Guinea. Judge Reinhardt’s sug-
gestion is incorrect. First, while a fear of physical harm may be evidence
of futility, determination whether such fear is sufficiently credible to ren-
der exhaustion futile—which is a different analysis than that done by the
district court for futility under the doctrine of forum non conveniens—
should be made in the first instance by the district court when there is a
dispute of fact. We are not and should never be fact-finders.
16466                  SAREI v. RIO TINTO, PLC
or subject to one of the other exceptions recognized in cus-
tomary international law. If so, local exhaustion requirements
may be excused. But this is different from the plurality’s pru-
dential exhaustion doctrine, which grants district courts dis-
cretion to decide whether or not to consider exhaustion in the
first place.

   A mandatory requirement of exhaustion of local remedies,
except where futile or otherwise unavailable, allows our
courts to play the role the ATS intended them to play: an ulti-
mate venue for claimed violations of the law of nations when
those claimed violations cannot or will not be cured by the
courts of the country in which the injuries occurred. The
requirement simultaneously prevents our unelected judiciary,
which Hamilton observed in Federalist 78 should have “no
influence over either the sword or the purse,” from assuming
the role of a roving sheriff in recurring, internecine disputes
involving claims of inequity and oppression outside the
United States. By interpreting the ATS not to include an
exhaustion requirement under the law of nations, but only in
the court’s prudence, the plurality leaves the decision whether
an ATS plaintiff may reach American courts without exhaust-
ing his local remedies (or even showing such remedies are
futile) to turn on the discretion of the individual judge to
whom the case is randomly assigned. Then, as with most

   Second, there appears to be such a factual dispute here. The declarations
on which Judge Reinhardt relies were signed on April 7, 2001—months
before the October 17, 2001 letter sent by the Papua New Guinean govern-
ment to the United States Ambassador, which mentioned the signing of a
recent peace agreement and objected to Sarei’s action in the United States
on the ground Papua New Guinean law incorporates “a comprehensive
human rights regime consistent with the highest international standards,”
effects mechanisms that “enable citizens to secure their rights at law,” and
ensures that Papua New Guinean courts continue their “proud record of
judicial independence.” See Letter from Robert Igara, Chief Secretary to
the Government of Papua New Guinea, to Her Excellency Ms. Susan
Jacobs, Ambassador of the United States (Oct. 17, 2001), at 5.
                        SAREI v. RIO TINTO, PLC                       16467
questions of mixed fact and law, our review would likely be
limited to whether the district court abused that discretion.
The law of nations, as incorporated into the ATS, demands a
more predictable application in our courts.

   Therefore, although I agree with the plurality that the dis-
trict court should consider whether Sarei exhausted his local
remedies before allowing his action in the United States to pro-
ceed,17 I would recognize that exhaustion requirement exists
in the ATS statute itself. I would require the district court to
consider (1) whether Sarei had local remedies and exhausted
them and (2) whether such exhaustion would be futile or oth-
erwise inadequate—not merely require the court to decide
whether to conduct this two-step exhaustion analysis.




  17
    I see four possible holdings: (1) exhaustion is never required; (2) as
a matter of prudence, district courts have discretion to determine whether
to conduct an exhaustion analysis; (3) as a matter of prudence, district
courts have discretion to determine whether to conduct an exhaustion anal-
ysis, but under these facts it would be an abuse of that discretion not to
conduct an exhaustion analysis, and (4) a district court is required by the
ATS statute to conduct an exhaustion analysis. Judge Reinhardt’s dissent
adopts position (1), I adopt position (4), and I believe the plurality adopts
position (2), as it directs the district court to “determine whether to impose
an exhaustion requirement.”
   Thus, the position of the merits panel majority, echoed by Judge Rein-
hardt’s dissent—that a court may address an ATS claim on the merits
without ever even approaching the question of exhaustion of local
remedies—is no longer good law in this circuit. Unfortunately, it appears
the plurality holds the district court here has discretion not to conduct a
two-step exhaustion analysis should it find one unnecessary due to pruden-
tial considerations. If the district court chooses to take the plurality up on
this faulty offer, we may see this case again quite soon.
16468                SAREI v. RIO TINTO, PLC
IKUTA, Circuit Judge, with whom Judge KLEINFELD joins,
dissenting:

   I write separately because I would affirm the dismissal of
this case on the ground that we lack subject matter jurisdic-
tion. Although I agree with the majority that in light of Sosa
v. Alvarez-Machain, 542 U.S. 692, 733 n.21 (2004), a district
court may consider whether to dismiss claims brought under
the Alien Tort Statute (ATS), 28 U.S.C. § 1350, on the ground
that the plaintiffs failed to exhaust remedies in the appropriate
forum, I see no basis for holding that the district court here
erred by failing to consider exhaustion before the other
threshold issues on which it relied to dismiss this case (e.g.,
political question, act of state, and subject matter jurisdiction).
The Supreme Court has made clear that “a federal court has
leeway ‘to choose among threshold grounds for denying audi-
ence to a case on the merits,’ ” and there is no mandatory
sequencing of non-merits grounds for disposing of a case.
Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 127
S. Ct. 1184, 1191 (2007) (quoting Ruhrgas AG v. Marathon
Oil Co., 526 U.S. 574, 585 (1999), Steel Co. v. Citizens for
a Better Environment, 523 U.S. 83, 100-01 n.3 (1998)).

   Rather than return this case to the district court for consid-
eration of this discretionary preliminary issue, I would affirm
the dismissal of this case on the ground that we exceed the
authority granted by Congress and the limits imposed by the
Constitution’s separation of powers by applying the ATS to
a dispute not involving United States territory or citizens.

   In Sosa, the Supreme Court established an approach for
analyzing claims brought under the ATS. Although focusing
on delineating the limited types of international law rules cog-
nizable under the ATS, the Court noted other possible limita-
tions on federal courts’ jurisdiction, including deference to the
political branches. See 542 U.S. at 727-28. As Sosa recog-
nized, our obligation to interpret the ATS narrowly has consti-
tutional underpinnings relating to the structural separation of
                    SAREI v. RIO TINTO, PLC                16469
the federal powers and the primacy of the political branches
in foreign affairs. See id. These separation of powers princi-
ples pervade our case law and clearly establish that decisions
pertaining to foreign policy “are wholly confided by our Con-
stitution to the political departments of the government, Exec-
utive and Legislative.” Chicago & S. Air Lines v. Waterman
S. S. Corp., 333 U.S. 103, 111 (1948). “They are decisions of
a kind for which the Judiciary has neither aptitude, facilities
nor responsibility and have long been held to belong in the
domain of political power not subject to judicial intrusion or
inquiry.” Id.; see also Haig v. Agee, 453 U.S. 280, 292 (1981)
(“Matters intimately related to foreign policy and national
security are rarely proper subjects for judicial intervention.”);
Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952) (“It
is pertinent to observe that any policy toward aliens is vitally
and intricately interwoven with contemporaneous policies in
regard to the conduct of foreign relations, the war power, and
the maintenance of a republican form of government. Such
matters are so exclusively entrusted to the political branches
of government as to be largely immune from judicial inquiry
or interference.”). As stated by the Supreme Court in a related
context, these principles “express[ ] the strong sense of the
Judicial Branch that its engagement in the task of passing on
the validity of foreign acts of state may hinder rather than fur-
ther this country’s pursuit of goals both for itself and for the
community of nations as a whole in the international sphere.”
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423
(1964) (discussing the underlying separation of powers princi-
ples in the context of the Act of State doctrine).

   These separation of powers principles, which are inherent
in the Constitutional framework and which intrinsically
demarcate a limited role for federal courts in foreign affairs,
must inform our consideration of what Congress had in mind
when it enacted the ATS and granted federal courts authority
to consider certain claims alleging violations of international
law. Although it may be difficult to determine the precise
contours of Congressional intent, see Sosa, 542 U.S. at 719
16470               SAREI v. RIO TINTO, PLC
(“a consensus understanding of what Congress intended has
proven elusive”), we must nevertheless strive to ascertain the
outer bounds of that intent.

   The historical context in which the ATS was enacted sheds
additional light on this issue. When the First Congress enacted
the ATS, it did so amidst concerns that the young nation had
been “hamstrung by its inability to cause infractions of trea-
ties, or of the law of nations to be punished” within the pur-
view of the United States, id. at 716 (internal quotation marks
omitted), and with a need “to assure the world that the new
Republic would observe the law of nations.” Id. at 722 n.15.
As noted in Sosa, the “so-called Marbois incident” in which
a French citizen assaulted the Secretary of the French Legion
in Philadelphia, further intensified these concerns. Id. at 716.
The nation’s inability to vindicate France’s interests led to
protests from France and weak apologies from Congress. Id.
at n.11. By enacting the ATS, Congress was attempting to
reassure the community of States that federal courts were
available to remedy those violations, such as assaults against
ambassadors, “which impinged upon the sovereignty of . . .
foreign nation[s] and if not adequately redressed could rise to
an issue of war.” Id. at 715; see also Tel-Oren v. Libyan Arab
Republic, 726 F.2d 774, 783 (D.C. Cir. 1984) (Edwards, J.,
concurring) (“There is evidence . . . that the intent of [the
ATS] was to assure aliens access to federal courts to vindicate
any incident which, if mishandled by a state court, might blos-
som into an international crisis.”). In other words, the ATS
gave federal courts an appropriate supporting role in the
sphere of foreign affairs: facilitating the political branches’
conduct of foreign relations by averting potential international
crises that could arise from disputes involving a nexus to the
United States. By providing a limited mechanism to vindicate
the rights of aliens in these situations, the ATS authorized
federal courts to assist the new nation in shouldering its
responsibilities as a member of the international community.

  This interpretation of the ATS is consistent with the “sparse
contemporaneous cases and legal materials referring to the
                    SAREI v. RIO TINTO, PLC                16471
ATS.” Sosa, 542 U.S. at 720. As evidenced by the historical
materials cited in Sosa, courts relied on the ATS as a source
of federal jurisdiction only in cases involving some nexus to
the United States, that is, only in cases implicating United
States territory or citizens. For example, in Bolchos v. Darrel,
3 F. Cas. 810 (No. 1, 607) (S.C. 1795), the district court
resolved two aliens’ controversy regarding a prize capture in
an American port. Sosa, 542 U.S. at 720. In Moxon v. The
Fanny, 17 F. Cas. 942 (No. 9, 895) (D. Pa. 1793), the district
court looked to the ATS for jurisdiction over a dispute involv-
ing a French privateer who seized a British ship in United
States waters, but ultimately dismissed the action because the
claim at issue was not “ ‘a suit for a tort only.’ ” Sosa, 542
U.S. at 720 (quoting Moxon, 17 F. Cas. at 948). Finally, in the
1795 opinion letter of Attorney General William Bradford,
the Attorney General stated that the ATS would provide juris-
diction for the claims of those parties injured by “Americans
who had taken part in the French plunder of a British slave
colony in Sierra Leone.” Id. at 721. I have found no case prior
to the Second Circuit’s reinvigoration (or reinvention) of the
ATS in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980)
where federal courts have asserted jurisdiction under the ATS
in a case lacking some nexus to the United States.

   This historical evidence, read together with an understand-
ing of the structural constraints placed on federal jurisdiction
by separation of powers principles, strongly supports the con-
clusion that Congress did not afford the federal courts juris-
diction to preside over the claims presented in this case.
Plaintiffs do not ask us to exercise jurisdiction to redress inju-
ries that, if left unredressed, would be the subject of interna-
tional discord between the United States and Papua New
Guinea. Cf. Tel-Oren, 726 F.2d at 783 (Edwards, J., concur-
ring) (ATS thought to apply where the failure of United States
courts to vindicate an alien’s civil rights would make the
United States answerable to the alien’s home state). Rather,
plaintiffs ask us to adjudicate a dispute that falls far outside
the realm of any historical ATS case, and to sit in judgment
16472               SAREI v. RIO TINTO, PLC
over interactions that took place on foreign soil among a for-
eign company, a foreign government, and foreign citizens.
Such an exercise of authority would encroach too far upon the
province of the political branches, thrusting us into a situation
rife with “risks of adverse foreign policy consequences,”
Sosa, 542 U.S. at 728, where we are asked to judge, rather
than vindicate, the interests of a foreign sovereign. See also
id. at 733 n.21. We are not entitled to read such an expansive
grant of jurisdiction into the ATS, given Congress’s presumed
intent to honor the structural constitutional principle that
“[t]he conduct of foreign relations of our government is com-
mitted by the Constitution to the executive and legislative —
‘the political’ — departments of the government.” Oetjen v.
Central Leather Co., 246 U.S. 297, 302 (1918). We are thus
bound to embrace a limited interpretation of the ATS—one
that facilitates, rather than disrupts, our participation in the
international state system.

   In sum, in the absence of direction from Congress, we can-
not read the ATS as authorizing an extension of jurisdiction
to disputes lacking any nexus to United States territory, citi-
zens, or interests. See Sosa, 542 U.S. at 726 (“[T]he general
practice [for the Supreme Court] has been to look for legisla-
tive guidance before exercising innovative authority over sub-
stantive law. It would be remarkable to take a more
aggressive role in exercising a jurisdiction that remained
largely in shadow for much of the prior two centuries.”).

   In light of the narrow scope of Congress’s grant of authori-
zation in the ATS, as informed by constitutional separation of
power principles, I would conclude that recognizing the torts
in this case exceeds the power we have to recognize causes
of action under the ATS, and we therefore lack jurisdiction to
entertain these claims.
                       SAREI v. RIO TINTO, PLC                      16473
KLEINFELD, Circuit Judge, concurring:

   I concur in the result reached by Judge McKeown’s opin-
ion, limited remand for consideration of whether exhaustion
should be required. I do so because we must provide some
clear direction to the district court, and only a result adopted
by a majority can do so.

   In my view, Judge Ikuta’s dissent is correct, and I join in
it fully. Even so, failure to exhaust is an additional reason for
dismissal and need not conflict with the reasons for dismissal
stated by Judge Ikuta.1

   The issue of exhaustion arises only because the Alien Tort
Statute has been stretched far beyond its purpose. Were it
properly confined to what the term “the law of nations” gener-
ally meant when Congress passed the statute (“The principal
offences against the law of nations . . . are of three kinds; [1.]
violation of safe-conducts; 2. Infringement of the rights of
[a]mbassadors; and 3. Piracy.”2 ), the issue of exhaustion
would not arise. Imperialistic application of the term “law of
nations” to whatever we American judges strongly disapprove
of undermines the purpose of the law of nations, “that the
peace of the world may be maintained.”3




  1
    See Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 127 S. Ct. 1184,
1191 (2007).
  2
    4 William Blackstone, Commentaries on the Laws of England 68
(1769) (cited in Sosa v. Alvarez-Machain, 542 U.S. 692, 724 (2004)).
  3
    4 William Blackstone, Commentaries on the Laws of England 68
(1769).
16474                   SAREI v. RIO TINTO, PLC
REINHARDT, Circuit Judge, dissenting, joined by Judges
PREGERSON, BERZON, and RAWLINSON:

   The plurality opinion remands this action to the district
court to consider whether this is a case in which prudential
exhaustion analysis should be applied, and, if so, whether
plaintiffs should be required to exhaust their remedies in
Papua New Guinea before proceeding further in the district
court. I note first that neither the Supreme Court nor any cir-
cuit court has ever imposed an exhaustion requirement, pru-
dential or otherwise, on a case brought under the Alien Tort
Statute (ATS), which was enacted in 1789. Because I do not
think that the Supreme Court “counseled” us to adopt such a
requirement, that there is anything about this case that makes
it “an appropriate case” in which to consider doing so, or that
we should require an exhaustion analysis in ATS cases when
Congress has not included such a requirement in the statute,
I dissent.

                                     A.

   The plurality’s starting point is a footnote in Sosa v.
Alvarez-Machain, in which the Supreme Court alluded to the
issue of exhaustion of local remedies and stated: “We would
certainly consider this requirement in an appropriate case.”
542 U.S. 692, 733 n.21 (2004). The exhaustion argument had
not been raised prior to the time that Sosa reached the Court,
and even there it had not been raised except in an amicus
brief. Contrary to the plurality’s assertion, the footnote stating
that the Court would consider the argument when it was prop-
erly raised certainly does not “signal” anything as to what the
Court’s ultimate position will be when the issue of exhaustion
is properly before it. Even the Court does not know that until
it reads the briefs, hears the arguments and carefully studies
the issue, including the history of the statute.1 Although the
  1
    I would also not parse the words in the sentence as carefully as Judge
Bea does and conclude that the Supreme Court would consider exhaustion
as a requirement rather than a prudential case-specific inquiry. I doubt that
the Court meant to infuse as much meaning into the one sentence as the
plurality or the concurrence would like.
                    SAREI v. RIO TINTO, PLC                16475
Court’s footnote states that it would consider whether to
adopt such a requirement, by no means did it advise lower
courts to do so before it has had the opportunity to decide
itself after the issue is properly presented to it — particularly
as neither our court nor any other circuit court has heretofore
found a need to limit ATS in this manner. See, e.g., Jean v.
Dorelien, 431 F.3d 776, 781 (11th Cir. 2005) (holding that the
exhaustion requirement does not apply to ATS); Hilao v.
Estate of Marcos, 103 F.3d 767, 778 (9th Cir. 1996) (applying
exhaustion only under the Torture Victim Protection Act
(TVPA)); Kadic v. Karadzic, 70 F.3d 232, 245 (2d Cir. 1995)
(describing the exhaustion requirement only under the
TVPA).

    Moreover, I do not find convincing the plurality’s assertion
that this is the “appropriate case” for considering when, if
ever, an exhaustion analysis should be undertaken. In fact, the
record and the district court’s interpretation of it make clear
that this is not such a case. When plaintiffs filed their suit,
their island of Bougainville “[had] been engaged in a civil war
[involving] the [Papua New Guinean] government for the past
ten years.” See Sarei v. Rio Tinto, 221 F. Supp. 2d 1116, 1174
(C.D. Cal. 2002). They submitted declarations asserting that
they or their families would be in danger if they had to bring
their claims in the courts in Papua New Guinea. The lead
plaintiff, Alexis Holyweek Sarei, for example, lived in the
United States as a permanent resident at the time the action
was filed and stated that he feared “grave harm” to himself
and his family if he were to travel to Papua New Guinea to
litigate the claims against Rio Tinto. Sarei Decl. ¶10 (ER
1948). Other plaintiffs located in Bougainville expressed sim-
ilar concerns. See, e.g., Tapuri Decl. ¶ 3 (ER 1932) (“I do not
feel safe if I had to go to PNG to prosecute this case. I am one
of Francis Ona’s officers . . . Mr. Ona has been hunted by
PNG forces, and a bounty placed on his head.”); Bom Decl.
¶3 (ER 1938) (“I am related to Francis Ona . . . . PNG placed
a K200,000 bounty on [Mr. Ona’s] head [and] because of my
relationship with Mr. Ona, I would fear for my life if
16476                  SAREI v. RIO TINTO, PLC
requested to go to PNG.”). The district court denied the defen-
dants’ motion to dismiss for forum non conveniens, in part
because it found that the plaintiffs “have adduced detailed
declarations as to why they believe they would be in danger
if they were forced to travel to Port Moresby [for trial.]” See
Sarei, 221 F. Supp. 2d at 1173-74.2

   As the plurality recognizes, there is a well-settled exception
to the exhaustion requirement when the alternative local rem-
edy is unavailable, ineffective, or futile. See Plurality op. at
16458-59. No rule of domestic or international law requires
plaintiffs who are alleging serious violations of human rights
to exhaust local remedies when there is evidence that plain-
tiffs would further risk their lives by doing so. See Doe v. Qi,
349 F. Supp. 2d 1258, 1319 (N.D. Cal. 2004) (excusing
exhaustion requirement under the Torture Victim Protection
Act (TVPA) when the complaint reveals that “those making
allegations against the government could suffer ‘serious repri-
sals’ ”); Estate of Rodriguez v. Drummond Co., Inc., 256 F.
Supp. 2d 1250, 1267-68 (N.D. Ala. 2003) (holding that the
TVPA does not require exhaustion of local remedies when
plaintiffs would be at risk of retaliation if they sought legal
redress); Presbyterian Church of Sudan v. Talisman Energy,
Inc., 244 F. Supp. 2d 289, 343 n.44 (S.D.N.Y. 2003)
(“Whether or not the ATS generally requires exhaustion of
local remedies, the Court is aware of no case . . . in which
   2
     Footnote six of Judge Bea’s concurrence is entirely incorrect. The dec-
larations to which he refers were reviewed and expressly credited by the
district court in making its ruling retaining jurisdiction in the United
States, see Sarei, 221 F. Supp. 2d at 1174, notwithstanding the subsequent
letter of October 17, 2001 which it reviewed before reaching its July 9,
2002 decision, see id. at 1202-03. All the necessary fact-finding has
already been done by the district court.
   The district court also found it unclear whether plaintiffs would be able
to find legal representation in Papua New Guinea, and unlikely that they
would be able to compel the production of critical witnesses and docu-
ments. See id. at 1174. On appeal, defendants did not challenge any of the
findings referred to in this footnote.
                    SAREI v. RIO TINTO, PLC                16477
plaintiffs were required to exhaust local remedies . . . where
doing so would be futile and would put plaintiffs in great dan-
ger”). In fact, exhaustion is not a very high bar to suit for vic-
tims of human rights abuses: even in specifically requiring
exhaustion under the TVPA, Congress explained that “in most
instances the initiation of litigation under this legislation will
be virtually prima facie evidence that the claimant exhausted
his or her remedies in the jurisdiction in which the torture
occurred” and that “courts should approach cases brought
under the [TVPA] with this assumption.” S. Rep. No. 102-
249, at 9-10 (1991). Because, given their fears of retaliation,
it is clear that plaintiffs would not need to exhaust their reme-
dies in Papua New Guinea even under the TVPA, this is not
an “appropriate case” to determine whether we should apply
an exhaustion analysis in ATS cases. In fact, it may well be
one of the least appropriate cases in which to do so.

                               B.

   Were, contrary to fact, this the “appropriate case” in which
to consider whether an exhaustion analysis should be applied
in ATS cases, I would conclude that it should not. The en
banc plurality, as well as the concurrence, errs by relying
heavily on the general principle of exhaustion of local reme-
dies under international law and ignoring the panel majority’s
warning that “we should not be lulled into a false sense of
familiarity with the term ‘exhaustion’ just because it is the
same term that we use to describe an analogous doctrine in
our domestic law.” Sarei v. Rio Tinto, 487 F.3d 1193, 1220
n.31 (9th Cir. 2007). There are many reasons why courts
should be reluctant to transplant the exhaustion principle onto
ATS, a statute that provides jurisdiction in United States
courts for violations of international human rights norms that
are specific, universal, and obligatory. See Sosa, 542 U.S. at
732 (citing In re Estate of Marcos Human Rights Litigation,
25 F.3d 1467, 1475 (9th Cir. 1994)).
16478                  SAREI v. RIO TINTO, PLC
   Exhaustion of local remedies is a rule of customary interna-
tional law that developed in the arena of diplomatic protection
in order to protect the sovereignty of states at a time when
international law recognized only the rights of states to pro-
tect its own citizens. See Chittharanjan Felix Amerasinghe,
Local Remedies in International Law 22-42 (2d ed. 2004).
The scope of the exhaustion rule is less settled, however, in
the realm of international human rights, where the law recog-
nizes the primacy of the fundamental rights of individuals and
the interest of states other than the victims’ own in guarantee-
ing such universal human rights. See id. at 67 (“[I]t would
seem logically to follow from the recognition of the fact that
individuals have fundamental human rights . . . that . . . there
should be a presumption that violations of such rights should
be susceptible of examination at an international level without
the need for the exhaustion of local remedies.”).3 It may be,
for example, that exhaustion is not required in the human
rights context when a treaty does not specifically mandate it.
See Amerasinghe, supra, at 66-68. Restatement (Third) of
Foreign Relations, to which the plurality cites, does not state
that exhaustion is required under international law to obtain
remedies for violations of human rights obligations. It
explains only that exhaustion of domestic remedies is required
when a state is pursuing “formal, bilateral remedies” or when
“international agreements providing remedies to individuals”
require it. See Restatement (Third) of Foreign Relations
§ 703, cmt. d (1987). Neither circumstance applies to plain-
tiffs bringing ATS claims.
  3
    See also, e.g., Paula Rivka Schochet, A New Role for an Old Rule:
Local Remedies and Expanding Human Rights Jurisdiction Under the
Torture Victim Protection Act, 19 Colum. Hum. Rts. L. Rev. 223, 238
(1987) (“The unique features of human rights protection preclude a strictly
parallel application of the customary local remedies rule.”); A.A. Cançado
Trindade, Exhaustion of Local Remedies Under the U.N. Covenant on
Civil and Political Rights and its Optional Protocol, 28 Int’l & Comp.
L.Q. 734, 765 (1979) (noting that in the context of the evolution of inter-
national protection of human rights, “the classic rule of prior exhaustion
of local remedies needs to be reappraised.”).
                    SAREI v. RIO TINTO, PLC                16479
   The exhaustion principle is even less established in the
enforcement of international human rights norms in domestic
courts against individuals and corporations, than in suprana-
tional tribunals against states. Exhaustion under international
law governs the vertical or hierarchical relationship of courts
— such as the relationship of international tribunals like the
International Court of Justice and the Inter-American Court of
Human Rights to domestic courts. See Interhandel Case
(Switz. v. U.S.), 1959 I.C.J. 6, 26 (Mar. 29) (“The rule that
local remedies must be exhausted before international pro-
ceedings may be instituted is a well-established rule of cus-
tomary international law.”) (emphasis added); Emeka
Duruigbo, Exhaustion of Local Remedies in Alien Tort Litiga-
tion, 29 Fordham Int’l L. J. 1245, 1275 (2006) (“Ordinarily,
the rule of local remedies applies as a conflict rule; it is used
to resolve conflicts of jurisdiction between municipal courts
and international tribunals. So the rule usually applies in a
vertical exercise of jurisdiction between national and interna-
tional tribunals.”). And when a case is brought in such inter-
national tribunals, the defendant is often the state. See The
Matter of Viviana Gallardo et al, Series A., No. G 101/81,
Inter-Am. C.H.R., Nov. 13, 1981, ¶ 26 (“[Exhaustion] . . .
excuse[s] the State from having to respond to charges before
an international body for acts imputed to it before it has had
the opportunity to remedy them by internal means.”) (empha-
sis added).

   In adjudicating ATS claims, however, United States courts
sit in horizontal, not vertical, relationship with courts of other
countries that might exercise its jurisdiction over the same
questions of international law as against individual defen-
dants. The more appropriate point of comparison is therefore
whether courts of other nations have imposed such a require-
ment before exercising universal jurisdiction. It appears that,
for the most part, they have not. See Cedric Ryngaert, Apply-
ing the Rome Statute’s Complementarity Principle, 19 Crim.
L.F. 153, 175 (2008) (studying the principle of “subsidiarity”
— in which a third-party state exercises universal jurisdiction
16480                   SAREI v. RIO TINTO, PLC
only when the state with a traditional basis of jurisdiction is
unable or unwilling to investigate and prosecute an interna-
tional crime — and concluding that “the absence of a convic-
tion on the part of States that subsidiarity has the compelling
force of law probably leads to the inevitable conclusion that
the subsidiarity principle is not a norm of customary interna-
tional law.”).4

   Our prior cases reflect that the exhaustion principle is not
an accepted limitation on a litigant’s ability to bring interna-
tional law claims in the United States courts. Indeed, we have
always resolved the question of competing jurisdiction with
foreign courts through the forum non-conveniens analysis —
not exhaustion. See, e.g., Sinochem Int’l Co. v. Malaysia Int’l
Shipping Corp., 549 U.S. 422 (2007); Altmann v. Republic of
Austria, 317 F.3d 954, 972 (9th Cir. 2002), aff’d on other
grounds by 541 U.S. 677 (2004); Cheng v. Boeing Co., 708
F.2d 1406 (9th Cir. 1983). The forum non conveniens doc-
trine grants courts the discretion to dismiss the case in consid-
eration of the balance of private and public interests. See Gulf
Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947). It applies to
ATS cases and was addressed and rejected by the district
court in this case. See Sarei, 221 F. Supp. 2d at 1164-78; see
also, e.g., Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88,
108 (2d Cir. 2000). I see no reason to deviate from our prac-
tice just because a principle of exhaustion exists in the inter-
national law of diplomatic protection or because some human
rights treaties explicitly require exhaustion prior to bringing
claims in international tribunals.
  4
    Although the plurality argues that we should be careful about exercis-
ing jurisdiction because the basis for universal civil jurisdiction is not as
well-settled as the basis for universal criminal jurisdiction, international
law does not preclude “the application of non-criminal law on [the basis
of universal jurisdiction.]” Restatement (Third) of Foreign Relations § 404
cmt. b. The plurality overstates the difference between the two types of
jurisdiction, as in many countries “universal criminal jurisdiction neces-
sarily contemplates a significant degree of tort recovery as well.” See
Sosa, 542 U.S. at 762-63 (Breyer, J., concurring).
                     SAREI v. RIO TINTO, PLC                16481
   Nor do I accept the view that prudential considerations
favor the imposition of the exhaustion requirement, for many
of the reasons already articulated by the panel majority. Most
important, the individual and institutional interests in an ATS
case weigh heavily against requiring exhaustion. ATS recog-
nizes jurisdiction only for violations of “a norm of interna-
tional character accepted by the civilized world” and “defined
with a specificity” comparable to the 18th century norm pro-
hibiting piracy. Sosa, 542 U.S. at 725. These are heinous
offences like genocide, crimes against humanity, and war
crimes. Sosa, 542 U.S. at 762 (Breyer, J., concurring). Indi-
viduals have an interest in obtaining a remedy for such injus-
tices and the United States has an interest in punishing the
“hostis humani generis, an enemy of all mankind,” Filartiga
v. Pena-Irala, 630 F.2d 876, 890 (2d Cir. 1980).

   The exercise of ATS jurisdiction may, of course, at times
trigger institutional concerns regarding sovereignty and com-
ity. But we have an arsenal of judicial doctrines that protect
the sovereignty interests of other countries or the foreign pol-
icy and comity interests of this country from judicial interven-
tion: political question, act of state, sovereign immunity, and
international comity, for example. In fact, one survey of the
cases in 2004 found that approximately 80% of the human
rights cases brought under ATS and TVPA since 1980 have
been dismissed on the bases of these and other similar doc-
trines. See K. Lee Boyd, Universal Jurisdiction and Struc-
tural Reasonableness, 40 Tex. Int’l L.J. 1, 2 & n.6 (2004).
Many of these doctrines have been raised in this case as well.
I do not think that we need to create a new requirement of
exhaustion in order to further restrict the availability of juris-
diction that Congress has granted.

   Moreover, in this lawsuit, like many others, the defendants
are not a sovereign state, or even officials of the state, but cor-
porations based in the United Kingdom and Australia that are
“part of an international group operating mines and process-
ing plants in forty countries, including the United States.”
16482                  SAREI v. RIO TINTO, PLC
Plurality op. at 16446. In such a case, the concern for sover-
eignty and comity is less pressing.5 This brings us back to the
point that even if the exhaustion analysis were to be applied,
the plaintiffs here would not be required to exhaust their claim
in Papua New Guinea, given all the circumstances, including
those discussed in section A, supra.

   I dissent for these reasons and for others set forth in the
panel majority’s opinion. See Sarei, 487 F.3d at 1213-24. In
the context of ATS, there are persuasive reasons why “the
balance [of interests] tips against judicially engrafting an
exhaustion requirement onto a statute where Congress has
declined to do so, and in an area of international law where
the Supreme Court has called for the exercise of judicial cau-
tion rather than innovation.” Sarei, 487 F.3d at 1219.




  5
    This would also explain why Congress specifically required exhaustion
under the TVPA, but not under ATS. TVPA imposes liability only when
the individual acts “under actual or apparent authority, or color of law, of
any foreign nation.” 28 U.S.C. § 1350 note. Under ATS, however, private
parties may be held liable so long as their conduct violates a well-
established norm of international law — even if they are not state actors.
See Sosa, 542 U.S. at 732 n.20; Kadic, 70 F.3d at 239.
