concurring:
I concur in the result reached by Judge McKeown’s opinion, 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 Iku-ta.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” generally 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 *841of 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
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 circuit court has ever imposed an exhaustion requirement, prudential 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, 738 n. 21, 124 S.Ct. 2739, 159 L.Ed.2d 718 (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 properly 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 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 *842filed 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 similar 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 requested to go to PNG.”). The district court denied the defendants’ 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 remedy 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 plaintiffs 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 reprisals’ ”); 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 plaintiffs were required to exhaust local remedies ... where doing so would be futile and would put plaintiffs in great danger”). In fact, exhaustion is not a very high bar to suit for victims 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 *843that 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 remedies 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 remedies 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, 124 S.Ct. 2739 (citing In re Estate of Marcos Human Rights Litigation, 25 F.3d 1467, 1475 (9th Cir.1994)).
Exhaustion of local remedies is a rule of customary international 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 protect 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 recognizes the primacy of the fundamental rights of individuals and the interest of states other than the victims’ own in guaranteeing 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 Amera-singhe, 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 individ*844uals” require it. See Restatement (Third) of Foreign Relations § 703, cmt. d (1987). Neither circumstance applies to plaintiffs bringing ATS claims.
The exhaustion principle is even less established in the enforcement of international human rights norms in domestic courts against individuals and corporations, than in supranational 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 proceedings may be instituted is a well-established rule of customary international law.”) (emphasis added); Emeka Duruigbo, Exhaustion of Local Remedies in Alien Tort Litigation, 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 international tribunals.”). And when a case is brought in such international 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.”) (emphasis 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 defendants. The more appropriate point of comparison is therefore whether courts of other nations have imposed such a requirement before exercising universal jurisdiction. It appears that, for the most part, they have not. See Cedric Ryngaert, Applying 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 only when the state with a traditional basis of jurisdiction is unable or unwilling to investigate and prosecute an international crime — and concluding that “the absence of a conviction 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 international law.”).4
Our prior cases reflect that the exhaustion principle is not an accepted limitation on a litigant’s ability to bring international 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, 127 S.Ct. 1184, 167 *845L.Ed.2d 15 (2007); Altmann v. Republic of Austria, 317 F.3d 954, 972 (9th Cir.2002), aff'd on other grounds by 541 U.S. 677, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004); Cheng v. Boeing Co., 708 F.2d 1406 (9th Cir.1983). The forum non conveniens doctrine grants courts the discretion to dismiss the case in consideration of the balance of private and public interests. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (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 practice just because a principle of exhaustion exists in the international law of diplomatic protection or because some human rights treaties explicitly require exhaustion prior to bringing claims in international tribunals.
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 recognizes jurisdiction only for violations of “a norm of international character accepted by the civilized world” and “defined with a specificity” comparable to the 18th century norm prohibiting piracy. Sosa, 542 U.S. at 725, 124 S.Ct. 2739. These are heinous offences like genocide, crimes against humanity, and war crimes. Sosa, 542 U.S. at 762, 124 S.Ct. 2739 (Breyer, J., concurring). Individuals have an interest in obtaining a remedy for such injustices 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 comity. But we have an arsenal of judicial doctrines that protect the sovereignty interests of other countries or the foreign policy and comity interests of this country from judicial intervention: 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 doctrines. See K. Lee Boyd, Universal Jurisdiction and Structural 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 jurisdiction 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 corporations based in the United Kingdom and Australia that are “part of an international group operating mines and processing plants in forty countries, including the United States.” Plurality op. at 16446. In such a case, the concern for sovereignty 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 *846exhaust their claim in Papua New Guinea, given all the circumstances, including those discussed in section A, swpra.
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 caution rather than innovation.” Sarei 487 F.3d at 1219.
. See Sinochem Int'l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 127 S.Ct. 1184, 1191, 167 L.Ed.2d 15 (2007).
. 4 William Blackstone, Commentaries on the Laws of England 68 (1769) (cited in Sosa v. Alvarez-Machain, 542 U.S. 692, 724, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004)).
. 4 William Blackstone, Commentaries on the Laws of England 68 (1769).
. 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.
. Footnote six of Judge Bea's concurrence is entirely incorrect. The declarations 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 documents. See id. at 1174. On appeal, defendants did not challenge any of the findings referred to in this footnote.
. 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. Canqa-do Trindade, Exhaustion of Local Remedies Under the U.N. Covenant on Civil and Political Rights and its Optional Protocol, 28 Inl'l & Comp. L.Q. 734, 765 (1979) (noting that in the context of the evolution of international protection of human rights, “the classic rule of prior exhaustion of local remedies needs to be reappraised.”).
. Although the plurality argues that we should be careful about exercising 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 necessarily contemplates a significant degree of tort recovery as well.” See Sosa, 542 U.S. at 762-63, 124 S.Ct. 2739 (Breyer, J., concurring).
. 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, 124 S.Ct. 2739; Kadic, 70 F.3d at 239.