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Public Radio's Environmental News Magazine (follow us on Google News)

Suing Across Borders

Air Date: Week of

Multinational companies sometimes take advantage of lax human rights and environmental laws overseas – but today, a few lawyers in the U.S. are trying to hold them legally accountable for their actions. Host Laura Knoy talks with David Hunter, executive director of the Center for International Environmental Law, about the growing trend of using American courts to try international crimes.


KNOY: A lawsuit was recently filed in California by people who live nearly 6,000 miles away. The plaintiffs are residents of the South Pacific island of Papua New Guinea. They say that for 30 years the British copper mining company, Rio Tinto, has destroyed villages, razed the rainforest, and dumped toxic chemicals into the river, ultimately causing thousands of deaths. It may seem a bit unusual to file a lawsuit in the U.S. for damages overseas by a foreign company, but this isn't the first case of its kind. These suits are part of a small but growing trend, an attempt to hold multinational companies accountable for actions in other countries. David Hunter is executive director of the Center for International Environmental Law. He says that the legal basis for these cases actually goes back more than three centuries.

HUNTER: Basically, the grounds date back to a statute that the U.S. passed in the 1700s to combat piracy, of all things. And it allows foreign citizens to bring tort claims here or to bring civil actions for damages based on violations of international law. And it does not require that it be a U.S. company. It doesn't require that it be a U.S. plaintiff. It simply opens up our courts for violations of international law.

KNOY: It started with pirates hundreds of years ago.

HUNTER: It did, and it sat dormant for hundreds of years as well, until it was resurrected in the 1980s by a torture case out of Paraguay, where a Paraguayan was tortured by a local Paraguayan police officer who then moved to Brooklyn. The family tracked him down and brought the suit in New York, and lo and behold the U.S. court said we can take jurisdiction over this case and help these people find justice.

KNOY: Are there other cases where this law has been used?

HUNTER: Well, it's an emerging, and still a new, area. But there have been about a half a dozen cases now that have been filed with similar facts. There is a case pending regarding Texaco's activities in Ecuador, where they drilled for oil for many years and left the Ecuadorean Amazon region a mess. That case has been pending in New York court. More recently as well, you have a case against Unocal for its activities in Burma, and the allegations there were slavery, rape, torture.

KNOY: It sounds like none of them have been quite completely successful yet.

HUNTER: No, they haven't. There are a host of jurisdictional and legalistic ways to block these cases. It's tough to bring a case from a distant place. And the courts have created a common-law kind of discretionary rule that the courts can apply, called Forum Non-Convenience, and it's just what it sounds like. It says this is not a convenient forum, and we're going to defer to alternative jurisdictions in other countries out of a sense of respect and out of a sense of convenience. And that's a fairly formidable obstacle for some of the cases. And some of the cases have beat that initial defense, the Unical case, for example. Unical didn't even raise that defense, probably because nobody would say that the courts of Burma provide a reasonable alternative.

KNOY: Is it easier for a human rights case than it is for an environmental case?

HUNTER: It is easier for a human rights case, because the international law of human rights is clearer, at least with respect to things like murder and rape and loss of life and liberty. So, because the international standards are clearer, the U.S. courts have an easier time of looking at and determining whether a violation has occurred. International environmental law is even a newer field, and the norms and standards are still evolving. And as a result, it's harder to be able to pinpoint what standards have been broken.

KNOY: And how high do those standards have to be? How terrible does the devastation have to be?

HUNTER: Well, you would think that there should be some general standard that would have you take a look at a river that's been totally devastated or a fishery that's been totally destroyed, villages that have been moved, and be able to say that should violate some international law or norm. But international law is a slowly evolving process. It requires often the consent of states. It requires a lot of research. And it is changing, but the question is how quickly it's changing, and these cases are right at the cutting edge. So, it's hard to tell whether or not a court is going to look into and find the international environmental standards. Personally, I think the standards are out there, and I think that the facts of some of these cases are so egregious that sooner or later courts are going to be motivated as much by the facts and say there's got to be some standards and here they are.

KNOY: So you seem to feel that there is a change coming in the courts, or that there could be a change coming in the courts, in the way that they feel about these international environmental cases.

HUNTER: There's absolutely a change coming, and I think the change is inevitable. And it's inevitable because all this talk of globalization and the globalized economy and the fact that we are integrating our countries' economies in such ways. And the way that I view this is, if we are going to reduce the barriers to the flow of capital, we also have to reduce the barriers to the flow of justice. And that's what's going on in these cases. No longer can companies operate in hiding in remote places. Bougainville Island, the location of this Rio Tinto mine, is very remote, yet nowadays there are monitors going on in every corner of the Earth, and multinationals can't operate without people knowing what's happening. And as a result, these cases are coming more and more to the front, where people are looking at it, saying, "This just ain't right, and the U.S. courts should be able to address it." And I think from that sort of inevitability of the facts and the emerging trends in international environmental law, we're going to see these cases being victorious.

KNOY: David Hunter is executive director at the Center for International Environmental Law. Thanks, David.

HUNTER: Thank you.



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