Featuring
Hari M. Osofsky
University of Minnesota; Carnegie Council Fellow, 2003-2004
Since 1980, when a U.S. federal court allowed a Paraguayan mother to sue the former Paraguayan official who tortured her son to death (Filartiga v. Pena-Irala), victims of severe human rights violations have used the Alien Tort Statute as a vehicle to gain redress in U.S. courts. This statute allows non-citizens to sue in U.S. federal courts for violations of the law of nations -- which is generally equated with customary international law -- or a U.S. treaty. Thus far, all of the cases have been brought in the lower courts, but the Supreme Court is poised to hear an Alien Tort Statute case for the first time in spring 2004 (U.S. v. Alvarez-Machain), and many advocates fear the Court may invalidate Filartiga and its progeny.
Beginning with Aguinda v. Texaco, which started winding its way through the courts in 1994, representatives of indigenous peoples who have suffered severely from the environmental irresponsibility of multinational corporations have attempted to gain redress under the Alien Tort Statute. The circumstances surrounding these claims are remarkably consistent. Each addresses environmental abuses by a corporation, such as Texaco, Freeport-McMoRan, Rio Tinto, and Southern Peru Copper Corporation -- generally in the context of other massive human rights violations -- that have a devastating impact on the local indigenous community. Despite a variety of legal strategies, however, to date every Alien Tort Statute case arguing that environmental damage violates human rights has failed on substantive or procedural grounds.
The facts in the above-mentioned Aguinda case are representative of the types of problems that these cases have tried to address. According to the plaintiffs, Texaco spilled over 3,000 gallons of oil per day during its operations in the Oriente region of Ecuador between 1972 and 1992. The Ecuadorian government estimated that nearly 17 million gallons of oil spilled from Texaco’s primary pipeline, which is approximately 6 million gallons more than was released in the Exxon Valdez spill. Texaco’s practice of discharging oil and disposing of waste directly onto roads and into streams and rivers exposed plaintiffs to hydrocarbons and carcinogens at levels many times higher than what the U.S. Environmental Protection Agency considers safe. Even the rain water became contaminated, leaving plaintiffs with no safe source of water for drinking, cooking, or bathing. As a result of long-term exposure to these toxic substances, plaintiffs suffered from a variety of ailments, including rashes and other skin irritations, cancer, and emotional distress.
Although the environmental harms in this and other suits brought under the Alien Tort Statute are extreme, they do not fit neatly into existing categories of international law. Given the deeply embedded principle of a state’s sovereignty over its natural resources, international environmental law rarely would allow a claim based on environmental harm occurring within a nation’s borders. And while international human rights law does provide a basis for impinging upon state sovereignty, few human rights instruments address the environment directly. Moreover, only two of the human rights instruments explicitly acknowledging the environment are binding. Similarly, binding international treaties against discrimination do not directly address environmental injustice.
This problem of characterizing these situations within existing categories of international law manifests in both advocacy strategies and judicial hesitancy. Advocates of environmental rights have struggled with the sovereignty problem in international environmental law, either making a general claim about international environmental law violations or trying to argue for an intra-national rule against environmental pollution. Human rights claims also diverge, ranging from claims of violations to the right to life and health, to the claim of cultural genocide such as in the Freeport McMoRan case (for more on this case, see the essay in this issue by Abigail Abrash Walton). The claim of cultural genocide is particularly problematic because the U.N. Genocide Convention covers only “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” In order to prevail, plaintiffs would have to prove a customary international law protection broader than that in the Convention. Thus far, no case has claimed that environmental harm violates the international law prohibitions against discrimination.
U.S. courts have consistently rejected each of these characterizations of the environmental harm as an international law violation actionable under the Alien Tort Statute, establishing ever more daunting barriers of precedent for those who hope to bring future claims under the Statute. The district court decision in Sarei v. Rio Tinto is the only instance in which a court substantively accepted an environmental claim under the Statute. It did so with respect to the narrow claim that dumping tailings (mining waste) into a bay violated the customary international law norms established by the U.N. Convention on the Law of the Sea. This substantive acceptance of the claim was not enough, however, for the plaintiffs to gain redress; the opinion barred adjudication of the environmental claim on the basis of three doctrines: (1) the issue represented a political question that the executive rather than judicial branches should resolve; (2) the court will not invalidate the official acts of foreign sovereigns; and (3) the recognition that nations give to one another’s executive and judicial decisions.
In these defeats, the characterization problem has been compounded by the tremendous discretion courts exercise in accepting the evidence presented by advocates for the existence of an international norm. Filartiga v. Pena-Irala, the ground-breaking case involving the Paraguayan torturer, set a very low threshold for the evidence needed to prove a law of nations violation. Filartiga relied on the general prohibitions on torture found in the U.N. Charter, numerous mentions in international treaties and nonbinding General Assembly resolutions, prohibition in fifty-five national constitutions, writings of scholars, and a general statement by the U.S. Department of State. The court thus found that customary international law prohibits official torture despite a lack of any binding international instrument specifically prohibiting it. Many of the human rights cases that followed supplemented the general approach in Filartiga by relying upon a standard that the claimed customary international law violation had to be able to be defined, universally accepted, and viewed by states as obligatory. These cases rarely provided analysis, however, as to why the standard was met with respect to a particular human rights violation, and so did little to clarify what additional violations might be actionable under the Alien Tort Statute.
The evidence for a norm against environmental rights violations is at least as strong as that accepted by the court in Filartiga. Yet the 2003 decision by the Second Circuit Court of Appeals in Flores v. Southern Peru Copper Corporation -- in which plaintiffs claimed that the mining operations caused severe lung disease in violation of the rights to life, health, and sustainable development -- illustrates how judicial discretion can make the mustering of such evidence irrelevant. The plaintiffs presented proof of a norm -- including binding treaties, General Assembly resolutions, decisions by international tribunals, and statements by international law experts -- that arguably exceeded that which was relied upon in Filartiga. The Court found each type of evidence presented inadequate, however, at times relying upon very narrow grounds to distinguish its rejection of international developments in this case from its acceptance of similar documentation in Filartiga. In particular, the court found the binding treaties to be insufficiently specific to environmental rights, the General Assembly resolutions to be nonbinding (given insufficient evidence of national prohibitions against violations of environmental rights), and the decisions by international tribunals and statements of experts not primary sources of international law.
Thoughtful commentators could disagree as to whether the court’s treatment of the international law evidence in Flores was appropriate. Regardless of one’s view, however, the lack of standards is troubling. The Filartiga decision and those that followed left tremendous ambiguity about the threshold that must be reached for U.S. courts to recognize an international law norm. The Flores court had so much discretion because international law standards for what constitutes a violation of customary international law -- and U.S. judicial interpretation of them -- are unclear.
The U.S. Alien Tort Statute jurisprudence thus provides a sobering example of the barriers to effective enforcement of environmental rights norms. Unless advocates can convince courts to accept a characterization of these problems as violations of international law -- a feat that has been accomplished only a few times in Inter-American, European, and U.N. tribunals -- victims will be limited to domestic law and non-legal strategies for obtaining redress.
