Class 28: Enviro Torts

1. Class 28: Enviro Torts POLS 363 International Law P. Brian Fisher Spring 2011

2. Beanalv. Freeport-McMoran969 F. Supp. 362 (1997) • F: Freeport (US Corp) operated mine in Indonesia, which in working with the state allegedly led environmental degradation and human rights violations. Beanal, a citizen of Indonesia, filed suit in the US under the ATS and TVPA for environmental torts, cultural genocide and human rights transgressions. • I: Can the ATS (and TVPA) provide jurisdiction and CofA for these alleged transgressions? • H: No. Although theoretically the ATS could provide jurisdiction for environmental torts and human rts violations, no CofA is present based on the facts. • R: 1. lacked standing-Beanal couldn’t file 3rd party claims.2. Failed to prove a viable CofA, as general principles of IEL were not enough (not universally recognized). Environ harm isn’t jus cogens (and debatable whether it’s CIL), which rules out private actors under Kadic. Cultural Genocide didn’t fit “genocide” defn because it wasn’t alleged that group members were intentionally being destroyed.3. TVPA claims dismissed b/c holds indivs liable not corps, and need to exhaust all other remedies first.

3. Sareiv. Rio Tinto 487 F. 3d 1993 (9th Cir. 2007) • F: The Plaintiffs, current and former residents of Papua New Guinea (PNG), sue Rio Tinto, a British international mining company, under the ATS for alleged violations of international laws including racial discrimination, environmental devastation (under UNCLOS), war crimes, and crimes against humanity. The violations were allegedly committed with the assistance of the PNG government. • PD: The district ct dismissed the claims (U.S. State Dept said that continuing litigation may affect the peace process with PNG). So, all claims were dismissed via the Political Question Doctrine, the Act of State Doctrine, and the principle of International Comity. • I: Do these elements (Pol Q doctrine, etc) preclude judicial evaluation of serious human rts and environmental concerns? • H: No, Pol Q, Act of State, and Int’l Comity do not preclude plaintiff’s CofA under ATS. • R: 1. The “Political Question Doctrine” prohibits the courts from addressing political matters that should be submitted to the executive branch. Under Sosa, Federal courts should give considerable weight to the Executive Branch’s view of the case’s impact on foreign policy. However, the courts cannot dismiss every case that touches on political questions or foreign relations.2. The “Act of State Doctrine” does not allow the United States to judge the validity of acts undertaken by a foreign sovereign power within its own territory. However, State Dept’s memo did not state sufficient impact on foreign relations to justify dismissal, and environmental claim was reinstated.3. The principle of “International Comity” requires governments to limit the scope and reach of laws and enforcement in deference to foreign sovereignty and statutes. Here, concerns were not sufficient to justify and dismissals reversed.4. Upheld district ct’s ruling that the plaintiff’s had a valid CofA, that did not explicitly require “exhaustion of local remedies first”, because although required by TVPA, it is not required under ATS for HRs violations. Although part of CIL, the court ruled that is wasn’t “obligatory” under IL.5. Environmental degradation deemed insufficient to present violation of international norm/CIL. Even IEL treaties may be insufficient to create a CofA for envdegradation. Need some form of transboundary effect.