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Environmental claims do not rise to the level of clear violations of international law needed to bring an action under the Alien Tort Claims Act, the 2nd U.S. Circuit Court of Appeals has ruled. Holding that assertions of “right to life” and “right to health” are “insufficiently definite to constitute rules of customary international law,” the 2nd Circuit, which broke new ground for recognizing claims under the act, rejected pollution as a basis for a cause of action. The court’s decision in Flores v. Southern Peru Copper Corp., 02-9008, was the latest in a line of cases that began with the 2nd Circuit’s seminal decision in Filartiga v. Pena-Irala, 630 F.2d 876 (1980). The controversial Filartiga decision recognized that the Alien Tort Claims Act (ATCA) afforded subject matter jurisdiction over claims that the international prohibition against official torture was violated by the torture and murder of two Paraguayan citizens by a former Paraguayan police official. Generating strong criticism from some scholars and the U.S. Court of Appeals for the D.C. Circuit, the Filartiga court also recognized a private right of action for aliens seeking only recompense for violations of international law. In Flores, the plaintiffs are residents of Ilo, Peru, or representatives of deceased residents who claim that Southern Peru Copper Corp.’s operations generated so much pollution that many residents suffer from lung disease. Southern District of New York Judge Charles S. Haight Jr. dismissed the case, saying the plaintiffs had “not demonstrated that high levels of industrial pollution … violate any well-established rules of customary international law.” At the 2nd Circuit, Judge Jose A. Cabranes discussed the Filartiga case and a second one, Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995), that expanded the reach of the Alien Tort Claims Act to private actors whose activities are of “universal concern,” and thus violate customary international law. Since those cases, Cabranes said, “neither Congress nor the Supreme Court has definitively resolved the complex and controversial questions regarding the scope and meaning of the ATCA.” “Whatever the differing perspectives among jurists and scholars — differences that can be resolved only by Congress and the Supreme Court — Filartiga remains the law of this Circuit, and we analyze plaintiffs’ claims under the framework set forth in that case and its progeny,” he said. The body of customary international law that can provide a basis for suit under the Alien Tort Claims Act, Cabranes said, consists only of “those clear and unambiguous rules by which States universally abide, or to which they accede, out of a sense of legal obligation and mutual concern.” But if the practice or custom is not “universally” followed by states out of that obligation, he said, “the practice cannot give rise to a rule of customary international law.” ‘SHOCKINGLY EGREGIOUS’ The plaintiffs in Flores asked the 2nd Circuit to expand the scope of the law to include “shockingly egregious” acts that are distinct from those torts that concern mere violations of domestic law. Judge Cabranes and Judges Amalya Kearse and Dennis Jacobs declined to do so. Allowing Alien Tort claims based on the “boundless and indeterminate” principles of “right to life” or “right to health,” would be a mistake, the court said. “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,” Cabranes said. The claims in Flores are a far cry from those accepted in Filartiga, he said, where the “Court cited extensive studies that States, in their domestic and international practices, repudiate official torture.” Wallace A. Showman and Malcolm S. Taub of Taub and Showman represented the plaintiffs. Peter J. Nickles, Thomas L. Cubbage III, Oscar Garibaldi and Elie Honig of Covington & Burling in Washington, D.C., represented Southern Peru Copper Corp.

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