Flores v. Southern Peru Copper Corporation

Residents of Ilo, Peru and representatives of deceased Ilo residents brought personal injury claims under the Alien Tort Claims Act (“ATCA”) against Southern Peru Copper Corporation (“SPCC”). SPCC was majority-owned by Asarco, a Delaware corporation with its principal place of business in Peru. Asarco was a wholly-owned subsidiary of Grupo Mexico, S.A. de C.V., a Mexican corporation with its principal place of business in Mexico City. It had operated copper mining, refining, and smelting operations in and around Ilo since 1960.

SPCC’s activities and environmental impact were regulated by the Peruvian government, which conducted regular reviews that found SPCC’s activities inflicted environmental damage affecting agriculture in the Ilo Valley. SPCC was ordered to pay fines to local farmers and was required to modify its operations in order to come into compliance with Peruvian environmental laws. This activity remained subject to the jurisdiction of Peruvian courts.

The plaintiffs alleged that SPCC’s operations in the Ilo area caused plaintiffs’ and decedents’ lung diseases. SPCC’s operations emitted large quantities of sulfur dioxide and fine particles of heavy metals into the local air and water. Plaintiffs claimed, under the ATCA, that such pollution constituted a customary international law offense by violating their right to life, right to health, and right to sustainable development.

The United States District Court for the Southern District of New York concluded that the plaintiffs’ claim should be dismissed for lack of subject matter jurisdiction, as they failed to establish a claim of an international customary law violation under the ATCA. In addition, it concluded that even if a claim had been established, it would have been dismissed on forum non conveniens grounds. The plaintiffs then appealed to the Court of Appeals.

The Court considered the intention and history of the ATCA, prior ATCA precedent (focusing on the landmark Filartiga v. Pena-Irala decision), and the definition, content and development of the Law of Nations. It determined that, to state a claim under the ATCA, “plaintiff must allege either a violation of a United States treaty or of a rule of customary international law, as derived from those universally adopted customs and practices that States consider to be legally obligatory and of mutual concern.”

The Court held that in this case plaintiffs had failed to establish a violation of customary international law. It stated that the rights to health and life were insufficiently definite to constitute rules of customary international law as required by the ATCA, which required that the plaintiffs allege a violation of “clear and unambiguous” rule of customary international law. In addition, the Court discussed the varied treaties, conventions, covenants, declarations, judicial decisions and expert affidavits which the plaintiffs had proffered as evidence of a rule prohibiting intranational pollution in customary international law and found that such evidence was not sufficient to establish that customary international law prohibited intranational pollution.

The Court did not reach a conclusion on the doctrine of forum non conveniens, in light of its conclusion that the plaintiffs failed to state a claim under the ATCA.

“In determining whether a particular rule is a part of customary international law-i.e., whether States universally abide by, or accede to, that rule out of a sense of legal obligation and mutual concern-courts must look to concrete evidence of the customs and practices of States. “ Section II.B.2

“As an initial matter, we hold that the asserted “right to life” and “right to health” are insufficiently definite to constitute rules of customary international law. As noted above, in order to state a claim under the ATCA, we have required that a plaintiff allege a violation of a “clear and unambiguous” rule of customary international law.” Section III.A

“These principles are boundless and indeterminate. They express virtuous goals understandably expressed at a level of abstraction needed to secure the adherence of States that disagree on many of the particulars regarding how actually to achieve them. But in the words of a sister circuit, they “state abstract rights and liberties devoid of articulable or discernable standards and regulations.” Beanal, 197 F.3d at 167. The precept that “[h]uman beings are entitled to a healthy and productive life in harmony with nature,” Rio Declaration, Principle 1, 31 I.L.M. 874, for example, utterly fails to specify what conduct would fall within or outside of the law. Similarly, the exhortation that all people are entitled to the “highest attainable standard of physical and mental health,” International Covenant on Economic, Social, and Cultural Rights, Art. 12, 993 U.N.T.S. 3, proclaims only nebulous notions that are infinitely malleable." Section III.A