Review the case of Rodolfo Ullonoa Flores, et al v. Southern Peru Copper Corp.
For your second posting respond to another student who has a different position regarding the court’s holding and discuss the reasoning for your position, in no less than 200 words.
REPLY TO Cecelia Krause POST ATTACHED BELOW
2 of 28 DOCUMENTS
RODOLFO ULLONOA FLORES, LUISA TORRES CHEEQUIEZOL, on behalf of
Veronica Velazco Torres, MAXIMA QUISPE CANARGO, on behalf of William
Angelo Caronado, ELENA CASILLA, on behalf of Henry Anderson Casilla; DAVID
BACANGEL AGUILAR; JUANA JAILLITA MANANI; ABLE VALDIVIA ACEVEDO and MARIO HERRERA, for the Estate of Mario Vitaliano Herrera Salinas,
Plaintiffs-Appellants, v. SOUTHERN PERU COPPER CORPORATION,
Docket No. 02-9008
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
414 F.3d 233; 2003 U.S. App. LEXIS 18098
April 15, 2003, Argued
August 29, 2003, Decided
SUBSEQUENT HISTORY: [**1] As Amended September 2, 2003. As Amended September 19, 2003. As Amended
October 24, 2003. As Amended March 14, 2005.
PRIOR HISTORY: Peruvian plaintiffs brought personal injury claims under the Alien Tort Claims Act (“ATCA”), 28
U.S.C. § 1350, against Southern Peru Copper Corporation (“SPCC”), a United States company, alleging that pollution
from SPCC’s copper mining, refining, and smelting operations in and around Ilo, Peru caused plaintiffs’ or their
decedents’ severe lung disease. Recognizing that a claim under the ATCA must allege a violation either of a treaty of the
United States or of customary international law, plaintiffs claimed that defendant’s conduct violates customary
international law by infringing upon their “right to life,” “right to health,” and right to “sustainable development.” The
District Court (Charles S. Haight, Jr., Judge) held that plaintiffs had failed to establish subject matter jurisdiction or to
state a claim under the ATCA. Flores v. Southern Peru Copper Corp., 253 F. Supp. 2d 510 (S.D.N.Y. 2002).
Flores v. S. Peru Copper Corp., 343 F.3d 140, 2003 U.S. App. LEXIS 27936 (2d Cir. N.Y., 2003)
Flores v. S. Peru Copper Corp., 253 F. Supp. 2d 510, 2002 U.S. Dist. LEXIS 13013 (S.D.N.Y., 2002)
PROCEDURAL POSTURE: Plaintiff Peru residents, who were representatives of deceased Peru residents, appealed
an order of the United States District Court for the Southern District of New York, which granted defendant company’s
motion to dismiss the Peru residents’ Alien Tort Claims Act (ATCA), 28 U.S.C.S. § 1350, action.
OVERVIEW: The district court concluded that the residents did not establish subject matter jurisdiction or state a
claim because they did not allege a violation of customary international law. They did not demonstrate that high levels
of environmental pollution within a nation’s borders, causing harm to human life, health, and development, violated
well-established, universally recognized norms of international law. On appeal, they argued the district court erred in
declining to recognize customary international law rights to life and health and in concluding that such rights were not
sufficiently determinate to constitute well-established, universally recognized norms of international law. The instant
court rejected the argument that courts should make a factual inquiry into whether the allegations rose to the level of
egregiousness and intentionality required to state a claim under international law. Further, the “right to life” and “right to
health” were insufficiently definite to constitute rules of customary international law. Finally, evidence such as treaties
and non-binding declarations of the United Nations General Assembly were not adequate evidence of customary
OUTCOME: The district court’s judgment was affirmed.
CORE TERMS: international law, customary, treaty, declaration, law of nations, assembly, convention, universally,
custom, pollution, torture, alien, legal obligation, environmental, binding, universal, covenants, causes of action,
intranational, conveniens, ratified, human rights, quotation, domestic, jurists, environmental pollution, mutual concern,
well-established, subsidiary, egregious
JUDGES: Before: KEARSE, JACOBS and CABRANES, Circuit Judges.
OPINION BY: JOSE A. CABRANES
[*236] JOSE A. CABRANES, Circuit Judge:
The question presented is whether plaintiffs’ claims are actionable under the Alien Tort Claims Act (“ATCA”), 28 U.S.C.
§ 1350. 1
1 This provision has also been referred to as the “Alien Tort Act,” see, e.g., Kadic v. Karadzic, 70 F.3d 232, 238 (2d Cir. 1995), and the
“Alien Tort Statute,” see, e. g., Filartiga v. Pena-Irala, 630 F.2d 876, 880 (2d Cir. 1980).
[**3] Plaintiffs in this case are residents of Ilo, Peru, and the representatives of deceased Ilo residents. They brought
personal injury claims under the ATCA against Southern Peru Copper Corporation (“SPCC”), a United States company,
[*237] alleging that pollution from SPCC’s copper mining, refining, and smelting operations in and around Ilo caused
plaintiffs’ or their decedents’ severe lung disease. The ATCA states that “the district courts shall have original
jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the
United States.” 28 U.S.C. § 1350. Plaintiffs claimed that defendant’s conduct violates the “law of nations” — commonly
referred to as “international law” or, when limited to non-treaty law, as “customary international law.” 2 In particular,
they asserted that defendant infringed upon their customary international law “right to life,” “right to health,” and right
to “sustainable development.”
2 In the context of the ATCA, we have consistently used the term “customary international law” as a synonym for the term the “law of
[**4] The United States District Court for the Southern District of New York (Charles S. Haight, Jr., Judge), held that
plaintiffs had failed to establish subject matter jurisdiction or to state a claim under the ATCA because they had not
alleged a violation of customary international law — i.e., that they had not “demonstrated that high levels of environmental pollution within a nation’s borders, causing harm to human life, health, and development, violate wellestablished, universally recognized norms of international law.” Flores v. Southern Peru Copper Corp., 253 F. Supp. 2d
510, 525 (S.D.N.Y. 2002) (internal quotation marks omitted).
I. Statement of the Case
[HN1] In reviewing a ruling on [**5] a motion to dismiss, we accept as true all well-pleaded factual allegations set
forth in the complaint. See, e. g., Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Resnik v.
Swartz, 303 F.3d 147, 150-51 (2d Cir. 2002). We recount below only such facts as are necessary to our disposition of
Plaintiffs in this case are residents of Ilo, Peru, and the representatives of deceased Ilo residents. Defendant, SPCC, is a
United States corporation headquartered in Arizona with its principal place of operations in Peru. It is majority-owned
by Asarco Incorporated (“Asarco”), a Delaware corporation with its principal place of business in Peru. Asarco is a
wholly-owned subsidiary of Grupo Mexico, S.A. de C.V., which is a Mexican corporation with its principal place of
business in Mexico City. SPCC has operated copper mining, refining, and smelting operations in and around Ilo since
SPCC’s operations emit large quantities of sulfur dioxide and very fine particles of heavy metals into the local air and
water. Plaintiffs claim that these emissions have caused their respiratory illnesses and that this [**6] “egregious and
deadly” local pollution constitutes a customary international law offense because it violates the “right to [*238] life,”
“right to health,” and right to “sustainable development.” Am. Compl. PP 1, 59-75. 3
3 On appeal, plaintiffs only pursue their claims that defendant’s conduct violates customary international law rights to life and health; they no
longer base their argument on a right to “sustainable development.”
SPCC’s activities, as well as their environmental impact, are regulated by the government of Peru. Since 1960,
commissions of the Peruvian government have conducted annual or semi-annual reviews of the impact of SPCC’s
activities on the ecology and agriculture of the region. These commissions have found that SPCC’s activities have
inflicted environmental damage affecting agriculture in the Ilo Valley and have required SPCC to pay fines and
restitution to area farmers. In addition to imposing fines and permitting area residents to seek restitution, the government
of Peru also has required [**7] SPCC to modify its operations in order to abate pollution and other environmental
damage. Under the direction of Peru’s Ministry of Energy and Mines (“MEM”), SPCC has conducted studies to
ascertain the environmental impact of its operations and the technical and economic feasibility of abating that impact. 4
SPCC is required to meet levels of emissions and discharges set by the MEM under Peruvian environmental laws
enacted in 1993, and is subject to the jurisdiction of the courts of Peru. 5
4 For example, in 1991, SPCC entered into an agreement with the government of Peru that, in conjunction with a modernization and
expansion of its facilities, it would spend $ 135 million for several environmental projects to be overseen by the MEM. The MEM approved
the design and spending on these projects, which were completed in 1996.
5 Record evidence, not contested by plaintiffs, demonstrates that SPCC has been sued in Peru for damages resulting from the environmental
impact of its operations.
II. [**8] Proceedings Before the District Court
A. Procedural History
Plaintiffs commenced this action by filing a complaint on December 28, 2000. They filed an Amended Complaint on
February 7, 2001. On March 5, 2001, SPCC filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6)
for lack of subject matter jurisdiction and for failure to state a claim, arguing that plaintiffs failed to allege a violation of
the law of nations. SPCC also moved to dismiss the Amended Complaint on the grounds of forum non conveniens and
international comity, and moved, in the alternative, for summary judgment pursuant to Fed. R. Civ. P. 56. While these
motions were pending, the District Court requested, and the parties provided, extensive supplemental briefing to apprise
the Court fully of all relevant questions of customary international law and of the adequacy of the Peruvian forum.
B. The District Court’s Opinion
On July 16, 2002, the District Court filed a comprehensive and scholarly opinion in which it carefully analyzed
plaintiffs’ claims and documentary evidence. The District [**9] Court held that plaintiffs had failed to state a claim
under the ATCA because they had not pleaded a violation of any cognizable principle of customary international law.
Flores, 253 F. Supp. 2d at 525. The Court noted that it did not need to reach the question of forum non conveniens
because it had determined that it lacked subject matter jurisdiction, but it nonetheless concluded that, even if plaintiffs
had pleaded a violation of customary international law, dismissal on the ground [*239] of forum non conveniens would
have been appropriate. Id. at 544.
In its analysis, the District Court discussed the requirements for a claim under the ATCA. It noted that “the ATCA
provides for federal court jurisdiction where a plaintiff’s claim involves a violation of a treaty of the United States or [ii]
the law of nations, which consists of rules that ‘command the general assent of civilized nations.'” Id. at 513-14 (quoting
Filartiga v. Pena-Irala, 630 F.2d 876, 881 (2d Cir. 1980) (internal quotation marks omitted)). Because plaintiffs did not
claim any violation of a United States treaty, the Court turned to [**10] the issue of whether plaintiffs had alleged a
violation of customary international law. Id. at 514. The District Court noted that, in order to allege a violation of
customary international law, “a plaintiff must demonstrate that a defendant’s alleged conduct violated ‘well-established,
universally recognized norms of international law.'” Flores, 253 F. Supp. 2d at 514 (quoting Filartiga, 630 F.2d at 888;
citing Kadic v. Karadzic, 70 F.3d 232, 239 (2d Cir. 1995)).
In analyzing whether the conduct alleged violated well-established and universally recognized rules of customary
international law, the District Court examined ATCA cases from both inside and outside of this Circuit presenting
similar claims. The District Court turned first to a decision from the Southern District of New York, Aguinda v. Texaco,
Inc., 142 F. Supp. 2d 534 (S.D.N.Y. 2001), in which citizens of Peru and Ecuador sued Texaco under the ATCA for
damages resulting from alleged [**12] severe, intra-national environmental pollution, claiming that such pollution
constituted a violation of the law of nations. The district court in Aguinda ultimately granted defendant’s motion to
dismiss on forum non conveniens grounds, but noted that “the specific claim plaintiffs purport to bring under the ATCA
— that the Consortium’s oil extraction activities violated evolving environmental norms of customary international
law … — lacks any meaningful precedential support and appears extremely unlikely to survive a motion to dismiss.”
Aguinda, 142 F. Supp. 2d at 552. We affirmed the decision on the ground of forum non conveniens. Aguinda, 303 F.3d
470 (2d Cir. 2002).
The District Court then looked to another case from the Southern District of New York, Amlon Metals, Inc. v. FMC
Corp., 775 F. Supp. 668 (S.D.N.Y. 1991), which had rejected the notion that environmental [*240] torts can violate
customary international law. Flores, 253 F. Supp. 2d at 516. In support of their claim that delivery of deliberatelymislabeled toxic waste violates customary international law, the Amlon Metals plaintiffs [**13] relied on documents
similar to, and in some cases the same as, those relied on by plaintiffs here to support analogous claims that the SPCC’s
alleged environmental torts violate the rights to life and health. Amlon Metals, 775 F. Supp. at 671. In particular, the
Amlon Metals plaintiffs relied on the Stockholm Declaration on the Human Environment (“Stockholm Declaration” or
“Stockholm Principles”), United Nations Conference on the Human Environment, Stockholm, Sweden, June 16, 1972,
11 I.L.M. 1416, and on the Restatement (Third) of the Foreign Relations Law of the United States (“Restatement
(Third)”) § 602(2) (1987). 6 The Amlon Metals Court rejected the Stockholm Principles as evidence of customary
international law because they “do not set forth any specific proscriptions, but rather refer only in a general sense to the
responsibility of nations,” and it rejected the relevant passage of the Restatement (Third) because it does not “constitute
a statement of universally recognized principles of international law.” Amlon Metals, 775 F. Supp. at 671. 7
6 Section 602(2) of the Restatement (Third) provides:
Where pollution originating in a state has caused significant injury to persons outside that state, or has created a significant
risk of such injury, the state of origin is obligated to accord to the person injured or exposed to such risk access to the
same judicial or administrative remedies as are available in similar circumstances to persons within the state.
The District Court also rejected plaintiffs’ argument that the cases discussed above are distinguishable because the
claims at issue in those cases were based on asserted customary international law prohibitions on environmental
pollution, rather than on the broader customary international law rights to life and health. The Court concluded that, no
matter how plaintiffs specifically defined the alleged customary international law violations, “plaintiffs had not
demonstrated that high levels of environmental pollution …violate any well-established rules of customary international
law.” Flores, 253 F. Supp. 2d at 519. The Court held that the submissions presented by plaintiffs were insufficient to
substantiate a violation of customary international [**17] law because the “documents speak in terms of ‘rights, ‘but
they do not identify any prohibited conduct that is relevant to this case.” Id.
The District Court ultimately concluded that plaintiffs’ claims should be dismissed for lack of subject matter jurisdiction
and because plaintiffs had failed to state a claim under the ATCA. In order to facilitate appellate review, the District
Court also considered defendant’s alternative argument that plaintiff’s claims should be dismissed pursuant to the
doctrine of forum non conveniens. After extensively analyzing the relevant factors, the Court concluded that, even if
plaintiffs had stated a claim under the ATCA, the case would have to be dismissed on forum non conveniens grounds. Id.
at 544. 9 The Court declined to reach defendant’s arguments with respect to international comity.
[**18] On appeal, plaintiffs claim that the District Court erred in declining to recognize customary international law
rights to life and health and in concluding that such rights were not sufficiently determinate to constitute “wellestablished, universally recognized norms of international law.” Filartiga, 630 F.2d at 888. They also challenge the
District Court’s refusal to accord sufficient probative value to the numerous professorial affidavits, conventions, and
declarations of multinational organizations that plaintiffs submitted in support of their claims. With respect to
defendant’s forum non conveniens claim, plaintiffs claim that the District Court erred in concluding that Peru provides
an adequate alternative forum.
I. The Alien Tort Claims Act
A. History of the ATCA
The Alien Tort Claims Act, 28 U.S.C. § 1350, states in full: [HN4] “The district courts shall have original jurisdiction
of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United
States.” Id. This language is derived with little alteration from the first congressional statute on the judiciary, the
Judiciary Act of 1789, ch. 20, § 9(b) [**20] , 1 Stat. 73, 76-77 (codified as amended at 28 U.S.C. § 1350 (2000)). 10
10 The Judiciary Act of 1789 reads, in relevant part: “The district courts … shall also have cognizance, concurrent with the courts of the
several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a
treaty of the United States.” Judiciary Act of 1789, ch. 20, § 9, 1 Stat. 73, 76-77. The ATCA has been amended several times principally to
reflect structural and procedural modifications to United States courts.
[HN5] On its face, the statute specifies that, to state a claim, plaintiffs must (i) be “aliens,” (ii) claiming damages for a
“tort only,” (iii) resulting from a violation “of the law of nations” or of “a treaty of the United States.” 28 U.S.C. § 1350;
see Kadic, 70 F.3d at 238; Filartiga, 630 F.2d at 887. The intended purpose and [**21] scope of the ATCA never have
been definitively established by legal historians or by the Supreme Court, and the ATCA lacks a legislative history that
could provide courts with guidance as to its intended meaning. 11 Some scholars have posited that Congress intended
the ATCA only to address claims arising out of the law of prize, which governs the right to intercept enemy merchant
vessels during wartime. 12 Others have argued that the ATCA provides a remedy only for those violations of
international law recognized in 1789, when the ATCA was first enacted — namely, claims arising under the law of prize,
offenses against ambassadors, 13 and acts of piracy. 14 [*243] Still others contend that the ATCA was intended to
provide a broad remedy for all torts in violation of international law, as that body of law might evolve over time. 15 In
sum, as Judge Henry J. Friendly, a distinguished student and practitioner of international law before his appointment to
the federal bench, wrote for our Court in IIT v. Vencap, Ltd., 519 F.2d 1001 (2d Cir. 1975), the ATCA “is a kind of legal
Lohengrin … no one seems to know whence it came.” Id. at 1015 [**22] . 16
1. The Filartig a Decision
Questions regarding the purpose and scope of the ATCA did not attract substantial judicial attention until the latter part
of the Twentieth Century, when the ATCA was first recognized by a federal appellate court as a viable basis for relief in
Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). In an opinion by Judge Irving R. Kaufman, our Court held that the
ATCA afforded subject matter jurisdiction over the claim of two citizens of Paraguay that a former Paraguayan police
inspector-general tortured and killed a member of their family in Paraguay in violation of the customary international
law prohibition against official torture. Id. at 880, 884. By allowing the plaintiffs’ claim to proceed, the Filartiga Court
not only held that the ATCA provides a [**25] jurisdictional basis for suit, but also recognized the existence of a private
right of action for aliens only seeking to remedy violations of customary international law or of a treaty of the United
In determining whether the plaintiffs had alleged a violation of the law of nations, the Filartiga Court first identified the
appropriate sources of customary international law, holding that “the law of nations ‘may be ascertained by consulting
the works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial
decisions recognising and enforcing that [*244] law.'” Id. at 880 (quoting United States v. Smith, 18 U.S. (5 Wheat.)
153, 160-61, 5 L. Ed. 57 (1820)). [**26] Then, addressing the issue of the ATCA’s scope, it determined that, in
considering whether a plaintiff has alleged a violation of customary international law, a court “must interpret
international law not as it was in 1789, but as it has evolved and exists among the nations of the world today.” Id. at
881; accord Kadic, 70 F.3d at 241; Kadic v. Karadzic, 74 F.3d 377, 378 (2d Cir. 1996) (denying petition for rehearing).
In order for a principle to have “ripened …into ‘a settled rule of international law,'” it must command “‘the general assent
of civilized nations.'” Filartiga, 630 F.2d at 881 (quoting Paquete Habana, 175 U.S. 677, 694, 44 L. Ed. 320, 20 S. Ct.
The Filartiga Court distinguished previous ATCA cases on the ground that “earlier cases did not involve such wellestablished, universally recognized norms of international law that are here at issue.” Id. at 888. It held that conduct
violates such norms of customary international law “only where the nations of the world have demonstrated that the
wrong is of mutual, and not merely several, concern, [**27] by means of express international accords[.]” Id. (citing
Vencap, 519 F.2d at 1015) (emphases added). The Filartiga Court concluded that acts of torture committed by State
officials violate “established norms of the international law of human rights, and hence the law of nations.” Filartiga,
630 F.2d at 880.
18 Customary international law rules proscribing crimes against humanity, including genocide, and war crimes, have been enforceable
against individuals since World War II.
[**29] 2. Reception of Filartig a
Filartiga’s interpretation of the ATCA as permitting private causes of action for [*245] recently-identified violations of
customary international law has been controversial. 19 The Ninth and Eleventh Circuits have followed Filartiga in
recognizing a private cause of action under the ATCA. See Abebe-Jira v. Negewo, 72 F.3d 844, 848 (11th Cir. 1996)
(holding that “the Alien Tort Claims Act establishes a federal forum where courts may fashion domestic common law
remedies to give effect to violations of customary international law”); Hilao v. Estate of Marcos (In re Estate of
Ferdinand Marcos, Human Rights Litig.), 25 F.3d 1467, 1475 (9th Cir. 1994) (“We thus join the Second Circuit in
concluding that the [ATCA] creates a cause of action for violations of specific, universal and obligatory international
human rights standards[.]”).
The Supreme Court has not yet addressed whether the ATCA permits a cause of action for violations of customary
international law as that body of law has evolved since 1789, or, indeed, whether Filartiga’s interpretation of the ATCA
is consistent with the Constitution. The Court has only once considered a claim brought under the ATCA, in Argentine
Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 102 L. Ed. 2d 818, 109 S. Ct. 683 (1989) [**34] , and, in that
case, it dismissed the plaintiffs’ claims on sovereign immunity grounds, holding that the Foreign Sovereign Immunities
Act (“FSIA”), 28 U.S.C. §§ 1330, 1602-11, bars most suits against foreign sovereigns, including those brought under
the ATCA. Amerada Hess, 488 U.S. at 434-5.
Nor has Congress wholly clarified the scope and meaning of the ATCA. However, following our Court’s decision in
Filartiga, Congress did pass the Torture Victim Protection Act of 1991 (“TVPA”), Pub. L. No. 102-256, 106 Stat. 73
(enacted March 12, 1992) (codified as Note to 28 U.S.C. § 1350), which created a cause of action for individuals
subjected to official torture or extrajudicial executions. 20 The TVPA is [*247] appended as a statutory note to the
ATCA, codified at 28 U.S.C. § 1350. 21 The TVPA reaches conduct that may also be covered by the ATCA, but the
TVPA “enhances the remedy already available under the [ATCA] in an important respect: while the [ATCA] provides a
remedy to aliens only, the TVPA …extends a civil remedy also to U.S. citizens who may [**35] have been tortured
abroad.” S. Rep. No. 102-249, at 5 (1991).
The Senate Report on the TVPA states that the statute was intended to “establish an unambiguous basis for a cause of
action that has been successfully maintained under [the ATCA,] …which permits Federal district courts to hear claims by
aliens for torts committed ‘in violation of the law of nations.'” Id. at 4.
Our Court has concluded that Congress intended to ratify our holding in Filartiga with respect to torture by passing the
TVPA. See Kadic, 70 F.3d at 241; Kadic, 74 F.3d at 378 (denying petition for rehearing); see also Hilao, 25 F.3d at
1475-76; Abebe-Jira, 72 F.3d at 848. Others have suggested that the TVPA actually created a cause of action
independent of the ATCA, and that such a cause of action is not reliant on the ATCA for jurisdiction, but instead may be
based on 28 U.S.C. § 1331- the general statute establishing federal question jurisdiction. See, e. g., Al Odah, 321 F.3d at
1146 (Randolph, J., concurring); Casto, note 19, ante, at 479-80.
In sum, neither Congress nor the Supreme Court has definitively resolved the complex and controversial questions
regarding the meaning and scope [**38] of the ATCA. Whatever the differing perspectives among judges and scholars
— differences that ultimately can be resolved only by Congress or 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.
B. The “Law of Nations”
1. Definition of “Law of Nations,” or “Customary International Law,” for Purposes of the ATCA
[HN6] The ATCA permits an alien to assert a cause of action in tort for violations of a treaty of the United States and
for violations of “the law of nations,” which, as used in this statute, refers to the body of law known as customary
international law. 28 U.S.C. § 1350; see also note 2, ante. The determination of what offenses violate customary
international law, however, is no simple task. Customary international law is discerned from myriad decisions made in
numerous and varied international and domestic arenas. Furthermore, the relevant evidence of customary international
law is widely dispersed [*248] and generally unfamiliar to lawyers and judges. These difficulties are compounded by
the fact that customary [**39] international law — as the term itself implies — is created by the general customs and
practices of nations and therefore does not stem from any single, definitive, readily-identifiable source. 22 All of these
characteristics give the body of customary international law a “soft, indeterminate character,” Louis Henkin,
International Law: Politics and Values 29 (1995), that is subject to creative interpretation. See Amerada Hess Shipping
Corp. v. Argentine Republic, 830 F.2d 421, 429 (2d Cir. 1987) (Kearse, J., dissenting) (noting the problem of allowing
jurisdiction to “ebb and flow with the vicissitudes of ‘evolving standards of international law'”), rev’d, 488 U.S. 428, 102
L. Ed. 2d 818, 109 S. Ct. 683 (1989). Accordingly, in determining what offenses violate customary international law,
courts must proceed with extraordinary care and restraint.
22 “Custom is the oldest and the original source of international law as well as of law in general,” the substance of which “is to be found in
the practice of states.” 1 Oppenheim’s International Law 25-26 (Sir Robert Jennings & Sir Arthur Watts, eds., 9th ed. 1996). The practice of
states, in turn, “embraces not only their external conduct with each other, but is also evidenced by such internal matters as their domestic
legislation, judicial decisions, diplomatic di spatches, internal government memoranda, and ministerial statements in Parliaments and
elsewhere.” Id. at 26.
[**40] In short, customary international law is composed only of those rules that States universally abide by, or accede
to, out of a sense of legal obligation and mutual concern.
First, [HN7] in order for a principle to become part of customary international law, States must universally abide by it.
Filartiga, 630 F.2d at 888 (holding that customary international law includes only “well-established, universally
recognized norms of international law”) (emphasis added); see also Kadic, 70 F.3d at 239 (quoting Filartiga, 630 F.2d at
888); id. at 243 n.8 (addressing whether a principle had “ripened into universally accepted norms of international
law” (emphasis added)). Of course, States need not be universally successful in implementing the principle in order for
a rule of customary international law to arise. If that were the case, there would be no need for customary international
law. But the principle must be more than merely professed or aspirational.
Furthermore, a principle is only incorporated into customary international law if States accede to it out of a sense of
legal obligation. See, e. g., Chubb & Son, Inc. v. Asiana Airlines, 214 F.3d 301, 307-08 (2d Cir. 2000) [**41]
(“Customary international law results from a general and consistent practice of states followed by them from a sense of
legal obligation.” (quoting Restatement (Third) § 102(2)) (internal quotation marks omitted) (emphasis added)).
Practices adopted for moral or political reasons, but not out of a sense of legal obligation, do not give rise to rules of
customary international law. See Hain v. Gibson, 287 F.3d 1224, 1243-44 (10th Cir. 2002) (noting that customary
international law does not include those practices that States have adopted “for moral or political reasons (as opposed to
any sense of legal obligation)” (internal quotation marks and citation omitted)); North Sea Continental Shelf (Federal
Republic of Germany v. Denmark; Federal Republic of Germany v. The Netherlands), 1969 I.C.J. 3, 44 (“not only must
the acts concerned amount to a settled practice, but they must also be …carried out in such a way as to be evidence of a
belief that this practice [*249] is rendered obligatory by the existence of a rule of law requiring it”).
Finally, customary international law addresses only those [**42] “wrongs” that are “of mutual, and not merely several ,
concern” to States. Filartiga, 630 F.2d at 888 (emphases added); see IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir.
1975) (Friendly, J.)
[**43] [HN8] Even if certain conduct is universally proscribed by States in their domestic law, that fact is not
necessarily significant or relevant for purposes of customary international law. As we explained in Filartiga and in IIT v.
Vencap, Inc., 519 F.2d 1001 (2d Cir. 1975):
Filartiga, 630 F.2d at 888 (quoting Vencap, 519 F.2d at 1015) (emphasis added). Therefore, for example, murder of one
private party by another, universally proscribed by the domestic law of all countries (subject to varying definitions), is
not actionable under the ATCA as a violation of customary international law because the “nations of the world” have not
demonstrated that [**44] this wrong is “of mutual, and not merely several, concern.” Id. By contrast, other offenses that
may be purely intra-national in their execution, such as official torture, extrajudicial killings, and genocide, do violate
customary international law because the “nations of the world” have demonstrated that such wrongs are of
“mutual …concern,” id, and capable of impairing international peace and security, see, e. g., Louis Henkin, NATO’s
Kosovo Intervention: Kosovo and the Law of “Humanitarian Intervention,” 93 Am. J. Int’l L. 824, 826 (1999)
(discussing the [*250] “responsibility of the world community to address threats to international peace and security
resulting from genocide and other crimes against humanity”); Brigadier General Telford Taylor, U.S.A., Chief of
Counsel for War Crimes, Final Report to the Secretary of the Army on the Nuernberg War Crimes Trials Under Control
Council Law No. 10, at 109 (William S. Hein & Co., Inc. 1997) (Aug. 15, 1949) (discussing a decision of the
Nuremberg war crimes tribunal holding that certain “crimes against humanity” are proscribed by customary international law in part [**45] because of “the force of circumstance” and “the grim fact of worldwide
In sum, [HN10] 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, constitute [**51] the body of customary international law. But where the
customs and practices of States demonstrate that they do not universally follow a particular practice out of a sense of
legal obligation and mutual concern, that practice cannot give rise to a rule of customary international law.
C. Plaintiffs’ Proposed “Egregiousness” Standard is Improper
Plaintiffs assert that instead of analyzing ATCA claims under the standards set forth above, courts should “make a
factual inquiry into whether the allegations rise to the level of egregiousness and intentionality required to state a claim
under international law.” Flores, 253 F. Supp. 2d at 522 (quoting Tr. of D. Ct. Oral Argument at [*253] 36). 27 They
propose a “shockingly egregious” standard for distinguishing torts that violate customary international law from those
that merely violate domestic law. Because this proposed standard is entirely inconsistent with our understanding of
customary international law as set forth both above and in Filartiga, we reject this argument.
[**52] The term “shockingly egregious” was first used by us in our brief per curiam opinion in Zapata v. Quinn, 707
F.2d 691 (2d Cir. 1983). Zapata addressed an alien plaintiff’s “unusually frivolous” claim that the New York State
Lottery deprived her of property without due process of law when it awarded her lottery winnings to her in an annuity
instead of in a lump sum. Id. at 692. She claimed jurisdiction under the ATCA, maintaining that the New York State
Lottery had somehow violated the law of nations. Id. In that case, we held as follows:
Zapata simply restates the law of the Circuit that an action lies under the ATCA only for violations of treaties [**53] or
customary international law. Id. The phrase “shockingly egregious” is used descriptively, not prescriptively, merely to
indicate that “because universal acceptance is a prerequisite to a rule becoming binding as customary international law,
only rules prohibiting acts that are ‘shockingly egregious’ are likely to attain that status.” Flores, 253 F. Supp. 2d at 523.
Zapata does not establish “shockingly egregious” as an independent standard for determining whether alleged conduct
constitutes a violation of international law. [HN11] No matter how shocking or egregious an action, it does not provide
the basis for a claim under the ATCA unless it violates customary international law.
Furthermore, as the District Court concluded, adoption of plaintiffs’ proposed “egregiousness” standard would
undermine the law of the Circuit in at least three separate ways. First, plaintiffs’ proposed standard “would displace the
agreement of nations as the source of customary international law and substitute for it the consciences and sensibilities
of individual judges.” Flores, 253 F. Supp. 2d at 523. Second, plaintiffs’ standard would shift the subject [**54] matter
of customary international law from matters of mutual concern between States — between States in their relations “inter
se” — to any matter in respect of which “egregious” conduct could occur. 28 Id. at 524. Third, contrary to the [*254]
requirement that customary international law rules be “clear and unambiguous,” Filartiga, 630 F.2d at 884, plaintiffs’
“egregiousness” standard would “divert attention from universally accepted standards to concepts …that are easily
subject to differing interpretations by the courts of different nations,” Flores, 253 F. Supp. 2d at 524. We agree in all
respects with these three conclusions of the District Court.
For the foregoing reasons, the District Court properly rejected plaintiffs’ claim that the egregiousness of the conduct
alleged bears on whether plaintiffs have stated a claim on which relief can be granted under the ATCA. Instead, [HN12]
in order to state a claim under the ATCA, a 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.
III. Plaintiffs Have Failed to Allege a Violation of Customary International Law
Having established the proper framework for analyzing ATCA claims, we must now decide whether plaintiffs have
alleged a violation of customary international law.
A. The Rights to Life and Health Are Insufficiently Definite to Constitute Rules of Customary International Law
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” [**56] rule of customary international law. Filartiga, 630 F.2d
at 884 (holding that the prohibition on official torture is “clear and unambiguous” and, as such, can serve as a basis for
suit under the ATCA); see id. at 888 (stating that in order to state a claim, a plaintiff must allege a violation of “wellestablished, universally recognized norms of international law”); Kadic, 70 F.3d at 239 (holding that federal jurisdiction
lies under the ATCA if “the defendant’s alleged conduct violates ‘well-established, universally recognized norms of
international law’ …as opposed to ‘idiosyncratic legal rules'” (quoting Filartiga, 630 F.2d at 888, 881)); cf. Beanal v.
Freeport-McMoran, Inc., 197 F.3d 161, 167 (5th Cir. 1999) (stating that customary international law cannot be
established by reference to “abstract rights and liberties devoid of articulable or discernable standards and regulations”);
Hilao v. Estate of Marcos (In re Estate of Ferdinand Marcos, Human Rights Litig.), 25 F.3d 1467, 1475 (9th Cir. 1994)
(stating that a rule of customary international law must be “specific, [**57] universal, and obligatory”).
Far from being “clear and unambiguous,” the statements relied on by plaintiffs to define the rights to life and heath are
vague and amorphous. For example, the statements that plaintiffs rely on to define the rights to life and health include
Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family ….
Universal Declaration of Human Rights, Art. 25, G.A. Res. 217A(III), U.N. GAOR, 3d Sess., U.N. Doc. A/810, at 71
The States Parties to the present Covenant recognize the right of everyone to [*255] the enjoyment of the highest attainable
standard of physical and mental health.
International Covenant on Economic, Social, and Cultural Rights, Art. 12, opened for signature Dec. 19, 1966, 993
U.N.T.S. 3, 6 I.L.M. 360.
Human beings are …entitled to a healthy and productive life in harmony with nature.
Rio Declaration on Environment and Development (“Rio Declaration”), United Nations Conference on Environment
and Development, Rio de Janeiro, Brazil, June 13, 1992, Principle 1, 31 I.L.M. 874 [**58] .
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 “human 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.
In support of plaintiffs’ argument that the statements and instruments discussed above are part of customary international law, plaintiffs attempt to underscore the universality of the principles asserted by pointing out that they
[**59] “contain no limitations as to how or by whom these rights may be violated.” Pls.’ Br. at 10 (emphasis added).
However, this assertion proves too much; because of the conceded absence of any “limitations” on these “rights,” they
do not meet the requirement of our law that rules of customary international law be clear, definite, and unambiguous.
For the foregoing reasons, plaintiffs have failed to establish the existence of a customary international law “right to life”
or “right to health.”
B. Plaintiffs Have Not Submitted Evidence Sufficient to Establish that Customary International Law Prohibits
Although customary international law does not protect a right to life or right to health, plaintiffs’ complaint may be
construed to assert a claim under a more narrowly-defined customary international law rule against intranational
pollution. 29 However, the voluminous documents and the affidavits of international law scholars submitted by plaintiffs
fail to demonstrate the existence of any such norm of customary international law. 30
29 Because plaintiffs do not allege that defendants’ conduct had an effect outside the borders of Peru, we need not consider the customary
international law status of transnational pollution. See note 6, ante (quoting the provision of the Restatement (Third) addressing
30 Although courts are generally limited to examining the sufficiency of the pleadings on a motion to dismiss, “on a challenge [to] the
district court’s subject matter jurisdiction, the court may resolve disputed jurisdictional fact issues by reference to evidence outside the
pleadings.” Filetech S.A. v. France Telecom S.A., 157 F.3d 922, 932 (2d Cir. 1998) (internal quotation marks and citation omitted). While the
determination of customary international law is not strictly factual, courts must resort to submissions outside the pleadings in order to
ascertain the customs and practices of states. Thus, where a motion to dismiss for lack of subject matter jurisdiction requires a determination
of customary international law, courts are not limited to examining the sufficiency of the pleadings.
[*256] In support of their claims, plaintiffs have submitted the following types of evidence: (i) treaties, conventions,
and covenants; (ii) non-binding declarations of the United Nations General Assembly, (iii) other non-binding
multinational declarations of principle; (iv) decisions [**61] of multinational tribunals, and (v) affidavits of
international law scholars. We analyze each type of evidence submitted by the plaintiffs in turn.
1. Treaties, Conventions, and Covenants
Plaintiffs rely on numerous treaties, conventions, and covenants in support of their claims. 31 Although these
instruments are proper evidence of customary international law to the extent that they create legal obligations among the
States parties to them, plaintiffs have not demonstrated that the particular instruments on which they rely establish a
legal rule prohibiting intranational pollution.
31 Although the ATCA provides a cause of action to aliens for torts “committed in violation of …a treaty of the United States,” 28 U.S.C. §
1350, as well as for violations of the law of nations, plaintiffs do not contend that defendant’s actions violate a United States treaty. Instead,
they rely on various multilateral treaties, conventions, and covenants as evidence of the “law of nations,” or customary international law.
[**62] [HN13] Treaties, which sometimes are entitled “conventions” or “covenants,” are proper evidence of
customary international law because, and insofar as, they create legal obligations akin to contractual obligations on the
States parties to them. Like contracts, these instruments are legally binding only on States that become parties to them
by consenting to be bound. See Lord McNair, The Law of Treaties 162 (1961) (“No State can be bound by any treaty
provision unless it has given its assent ….”). Under general principles of treaty law, a State’s signing of a treaty serves
only to “authenticate” its text; it “does not establish [the signatory’s] consent to be bound.” Ian Brownlie, Principles of
Public International Law 610-11 (5th ed. 1999). A State only becomes bound by — that is, becomes a party to — a treaty
when it ratifies the treaty. See id. at 611; Haver v. Yaker, 76 U.S. (9 Wall.) 32, 35, 19 L. Ed. 571 (1869) (observing that
the United States is bound by a treaty only once “the Senate, in whom rests the authority to ratify it, …agrees to it.”);
Dreyfus v. Von Finck, 534 F.2d 24, 27 n.3 (2d Cir. 1976) [**63] (stating that the United States is not a party to an
unratified treaty). 32 Accordingly, only States that have ratified a treaty are legally obligated to uphold the principles
embodied in that treaty, and the treaty only evidences the customs and practices of those States.
32 The United States becomes a “party” to a treaty–that is, becomes contractually bound to obey its terms–only when, upon concurrence of
“two thirds of the Senators present,” U.S. Const. art. II, § 2, cl. 2 the President ratifies the treaty, see note 20, ante.
[HN14] All treaties that have been ratified by at least two States provide some evidence of the custom and practice of
nations. However, a treaty will only constitute sufficient proof of a norm of customary international law if an
overwhelming majority of States have ratified the treaty, and those States uniformly and consistently act in accordance
with its principles. The evidentiary weight to be afforded to a given treaty [**64] varies greatly depending on (i) how
many, and which, States have ratified the treaty, and (ii) the degree to which those States actually implement and [*257]
abide by the principles set forth in the treaty.
With respect to the first of these factors, the more States that have ratified a treaty, and the greater the relative influence
of those States in international affairs, the greater the treaty’s evidentiary value. 33 With respect to the second of these
factors — the degree to which States parties actually implement and abide by the principles set forth in the treaty — the
evidentiary value of a treaty increases if the States parties have taken tangible action to implement the principles
embodied in the treaty.
33 As we have previously observed:
While it is not possible to claim that the practice or policies of any one country, including the United States, has such
authority that the contours of customary international law may be determined by reference only to that country, it is highly
unlikely that a purported principle of customary international law in direct conflict with the recognized practices and
customs of the United States and/or other prominent players in the community of States could be deemed to qualify as a
bona fide customary international law principle.
United States v. Yousef, 327 F.3d 56, 92 n.25 (2d Cir. 2003).
34 Self-executing treaties are those that “immediately create rights and duties of private individuals which are enforceable and [are] to be
enforced by domestic tribunals.” Stefan A. Riesenfeld, Comment: The Doctrine of Self-Executing Treaties and U.S. v. Postal: Win at Any
Price?, 74 Am. J. Int’l L. 892, 896-97 (1980). Non-self-executing treaties “require implementing action by the political branches of
government or …are otherwise unsuitable for judicial application.” Lori Fisler Damrosch, The Role of the United States Senate Concerning
“Self-Executing” and “Non-Self-Executing” Treaties, 67 Chi.-Kent L. Rev. 515, 516 (1991); see also Trans World Airlines, Inc. v. Franklin
Mint Corp., 466 U.S. 243, 252, 80 L. Ed. 2d 273, 104 S. Ct. 1776 (1984); Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003); Dreyfus v. Von
Finck, 534 F.2d 24, 30 (2d Cir. 1976).
[**66] The treaties on which plaintiffs principally rely include: the International Covenant on Civil and Political
Rights, opened for signature Dec. 19, 1966, 999 U.N.T.S. 171, 6 I.L.M. 368 (ratified by the United States June 8, 1992);
the American Convention on Human Rights, Nov. 22, 1969, 1144 U.N.T.S. 123, 9 I.L.M. 673; the International
Covenant on Economic, Social and Cultural Rights, opened for signature Dec. 19, 1966, 993 U.N.T.S. 3, 6 I.L.M. 360;
and the United Nations Convention on the Rights of the Child, G.A. Res. 44/25, annex, U.N. GAOR, 44th Sess., Supp.
No. 49, at 167, U.N. Doc. A/44/25 (1989), 1577 U.N.T.S. 3, 28 I.L.M. 1448.
The only treaty relied on by plaintiffs that the United States has ratified is the non-self-executing International Covenant
on Civil and Political Rights (“ICCPR”), opened for signature Dec. 19, 1966, 999 U.N.T.S. 171, 6 I.L.M. 368. 35 In
[*258] addition to the United States, 148 nations have ratified the ICCPR. See I United Nations, Multilateral Treaties
Deposited with the Secretary General 164-65 (2003). Plaintiffs rely on Article 6(1) of the ICCPR, which states [**67]
that “every human being has the inherent right to life” that “shall be protected by law,” and that “no one shall be
arbitrarily deprived of his life.” As noted above, the “right to life” is insufficiently definite to give rise to a rule of
customary international law. Because no other provision of the ICCPR so much as suggests an international law norm
prohibiting intranational pollution, the ICCPR does not provide a basis for plaintiffs’ claim that defendant has violated a
rule of customary international law.
35 The United States Senate gave its advice and consent to ratification of the ICCPR on April 2, 1992. See International Covenant on Civil
and Political Rights, 102d Cong., 138 Cong. Rec. S4781, S4784 and was ratified by the President on June 8, 1992, see I United Nations,
Multilateral Treaties Deposited with the Secretary General 165 (2003). However, the treaty was ratified with numerous reservations
conforming the United States’ obligations under the ICCPR to the requirements of the Constitution, and with the declaration that the ICCPR
is not self-executing. Id. Accordingly, this treaty does not create a private cause of action in United States courts. Id.; see also S. Exec. Rep.
No. 102-23, at 9, 19, 23 (1992), 138 Cong. Rec. S4096; Poindexter v. Nash, 333 F.3d 372, 379 (2d Cir. 2003); Romeu v. Cohen, 265 F.3d
118, 136 n.8 (2d Cir. 2001); Al Odah v. United States, 355 U.S. App. D.C. 189, 321 F.3d 1134, 1147 (D.C. Cir. 2003) (Randolph, J.,
[**68] Similarly, the American Convention on Human Rights (“American Convention”), Nov. 22, 1969, 1144 U.N.T.S.
123, 9 I.L.M. 673, does not assist plaintiffs because, while it notes the broad and indefinite “right to life,” id. art. 4, it
does not refer to the more specific question of environmental pollution, let alone set parameters of acceptable or
unacceptable limits. Moreover, the United States has declined to ratify the American Convention for more than three
decades, see Stanford v. Kentucky, 492 U.S. 361, 390, n.10, 106 L. Ed. 2d 306, 109 S. Ct. 2969 (1989); see also Garza v.
Lappin, 253 F.3d 918, 925 (7th Cir. 2001) (noting that “although the United States has signed the American Convention,
it has not ratified it, and so that document does not yet qualify as one of the ‘treaties’ of the United States that creates
binding obligations”), indicating that this document has not even been universally embraced by all of the prominent
States within the region in which it purports to apply.
Plaintiffs also rely on the unratified International Covenant on Economic, Social and Cultural Rights (“ICESCR”),
opened for signature [**69] Dec. 19, 1966, 993 U.N.T.S. 3, 6 I.L.M. 360. This instrument arguably refers to the topic
of pollution in article 12, which “recognizes the right of everyone to the enjoyment of the highest attainable standard of
physical and mental health,” id. art. 12(1), and instructs the States parties to take the steps necessary for “the
improvement of all aspects of environmental and industrial hygiene,” id. art. 12(2)(b). Although article 12(2)(b)
instructs States to take steps to abate environmental pollution within their borders, it does not mandate particular
measures or specify what levels of pollution are acceptable. Instead, it is vague and aspirational, and there is no
evidence that the States parties have taken significant uniform steps to put it into practice. See, e. g., Oona A. Hathaway,
Do Human Rights Treaties Make a Difference?, 111 Yale L.J. 1935, 1965 & n. 14 (2002) (noting the absence of data
indicating compliance of States parties with their obligations under the ICESCR). Finally, even if this provision were
sufficient to create a rule of customary international law, the rule would apply only to state actors because the provision
addresses [**70] only “the steps to be taken by the States Parties,” ICESCR art. 12(2) (emphasis added), and does not
profess to govern the conduct of private actors such as defendant SPCC.
For the foregoing reasons, the treaties, conventions or covenants relied on by plaintiffs do not support the existence of a
customary international law rule against intranational pollution.
2. Non-Binding General Assembly [**72] Declarations
Plaintiffs rely on several resolutions of the United Nations General Assembly in support of their assertion that
defendant’s conduct violated a rule of customary international law. 36 These documents are not proper sources of
customary international law because they are merely aspirational and were never intended to be binding on member
States of the United Nations.
36 General Assembly documents cited by plaintiffs in their briefs include the Universal Declaration of Human Rights, G.A. Res. 217A(III),
U.N. GAOR, 3d Sess., U.N. Doc. A/810, at 71 (1948) arts. 3 (right to life), 25 (right to health), and the World Charter for Nature, G.A. Res.
37/7, U.N. GAOR, 37th Sess., Supp. No. 51, at 17, U.N. Doc. A/37/51 (1982).
The General Assembly has been described aptly as “the world’s most important political discussion forum,” but it is not
a law-making body.
The core constitutive principles that emerged from the three major preparatory conferences that led to the adoption of
the United Nations Charter were those creating the General Assembly and the Security Council of the United Nations
and setting forth their respective purposes and powers. The simplest and clearest of these organizing principles was that
the General Assembly would provide a forum in which all states, small and large, [**74] would enjoy formal juridical
equality, with the power to discuss virtually anything; however, as part and parcel of that understanding, it was agreed
that, apart from certain internal arrangements such as the Organization’s budget and other internal and financial matters
not pertinent here, the General Assembly’s resolutions would not be binding on States. As one contemporary
[**76] [*261] The authority to make pronouncements that could be legally binding was reserved to the Security
Council, in which each of the identified Great Powers of the post-war era would be permanent members and hold a veto
power. See, e.g., Dolivet, The United Nations: A Handbook on the New World Organization at 45-57 (discussing the
composition and function of the Security Council). . . In sum, as described in The Law of Nations, the classic handbook
by Professors Brierly and Waldock of Oxford University:
All that the General Assembly can do is to discuss and recommend and initiate studies and consider reports from other bodies. It
cannot act on behalf of all the members, as the Security Council does, and its decisions are not directions telling the member states
what they are or are not to do.”
J.L. Brierly, The Law of Nations 110 (Sir Humphrey Waldock ed., 6th ed. 1963) (second emphasis added). [HN16]
Because General Assembly documents are at best merely advisory, they do not, on their own and without proof of
uniform state practice, see notes 22 and 26, ante, evidence an intent by member States to be legally bound by their
principles, and thus cannot give rise to rules of customary international law.
Our position is consistent with the recognition in Filartiga that the right to be free from torture embodied in the
Universal Declaration of Human Rights, G.A. Res. 217A(III), U.N. GAOR, 3d Sess., U.N. Doc. A/810, at 71 (1948),
has attained the status of customary international law. Filartiga cited the Universal [**78] Declaration for the
proposition that torture is universally condemned, reasoning that “a [United Nations] declaration may by custom become
recognized as [a] rule” of customary international law. Filartiga, 630 F.2d at 883 (emphasis added) (internal quotation
marks and citation omitted). The Court explained that non-binding United Nations documents such as the Universal
Declaration “create an expectation of adherence,” but they evidence customary international law only “insofar as the
expectation is gradually justified by State practice.” Id. (internal quotation marks and citation omitted) (emphasis
[**81] 3. Other Multinational Declarations of Principle
In addition to General Assembly documents, plaintiffs rely on numerous other multinational “declarations” to
substantiate their position that defendant’s intranational pollution in Peru violated customary international law. A
declaration, which may be made by a multinational body, or by one or more States, customarily is a “mere general
statement of policy [that] is unlikely to give rise to … obligations in any strict sense.” 1 Oppenheim’s International Law
1189 (Sir Robert Jennings & Sir Arthur Watts, eds., 9th ed. 1996). In undertaking the difficult task of determining the
contours of customary international law, a court is not granted a roving commission to pick and choose among
declarations of public and private international organizations that have articulated a view on the matter at hand. Such
declarations are almost invariably political statements — expressing the sensibilities and the asserted aspirations and
demands of some countries or organizations — rather than statements of universally-recognized legal obligations.
Accordingly, such declarations are not proper evidence of customary international law.
[**82] Occasionally, a document entitled a “declaration” may actually be a binding treaty because the document uses
language indicating the parties’ intent to be bound and sets forth “definite rules of conduct.” Id.; see, e. g., Iran v. United
States (Case A/1), 68 I.L.R. 523, 525 (Iran-U.S. Claims Trib. 1982) (noting that the agreements between the United
States [*263] and Iran that concluded the hostage crisis were termed “declarations,” even though they created legally
binding obligations). [HN17] Only in such rare instances — where the States joining in the self-styled “declaration”
intended it to be legally binding — may a party rely on a document entitled a “declaration” as evidence of the customs
and practices of the States joining the declaration.
Apart from the General Assembly documents addressed above, plaintiffs principally rely on two multinational
declarations in support of their claims. First, they draw our attention to the American Declaration of the Rights and
Duties of Man (“American Declaration”), O.A.S. Res. XXX (1948), O.A.S. Off. Rec. OEA/Ser. LV/I. 4 Rev. (1965),
promulgated by the Organization of American States (“OAS”). As one of our sister Circuits has [**83] correctly
observed, the American Declaration “is an aspirational document which …did not on its own create any enforceable
obligations on the part of any of the OAS member nations.” Garza v. Lappin, 253 F.3d 918, 925 (7th Cir. 2001).
Plaintiffs also rely on Principle 1 of the Rio Declaration, 31 I.L.M. 874, which sets forth broad, aspirational principles
regarding environmental protection and sustainable development. The Rio Declaration includes no language indicating
that the States joining in the Declaration intended to be legally bound by it.
Because neither of these declarations created enforceable legal obligations, they do not provide reliable evidence of
customary international law. 41
[**84] 4. Decisions of Multinational Tribunals
Plaintiffs also rely on judicial decisions of international tribunals in support of their claims. In particular, they rely on
decisions of the International Court of Justice, and on the European Court of Human Rights, a regional institution. But
neither of these tribunals is empowered to create binding norms of customary international law. With respect to the
International Court of Justice, Article 59 of the ICJ Statute expressly states that “the decisions of the Court have no
binding force except between the parties and in respect of that particular case.” ICJ Statute, June 26, 1945, art. 59, 59
Stat. 1055, U.S.T.S. 993.
With respect to the European Court of Human Rights, the Court is only empowered to “interpret” and “apply” the
rules set forth in the European Convention [*264] for the Protection of Human Rights and Fundamental Freedoms,
opened for signature Apr. 11, 1950, 213 U.N.T.S. 221, E.T.S. No. 5 (“European Convention”) — an instrument
applicable only to its regional States parties — not to create new rules of customary international law. See European
Convention art. 32 (stating that the Court’s jurisdiction [**85] “extends to all matters concerning the interpretation and
application of the Convention”); see also ICJ Statute art. 38 (listing judicial decisions as “subsidiary,” rather than
primary, sources of customary international law). Accordingly, the international tribunal decisions cited by plaintiffs are
not primary sources of customary international law. And while these decisions may constitute subsidiary or secondary
sources insofar as they restate and apply the European Convention, nothing in that regional convention addresses
pollution, let alone intranational pollution.
[**92] Because plaintiffs have failed to submit evidence sufficient to establish that intranational pollution violates
customary international law, the District Court properly granted defendant’s motion to dismiss.
For the reasons stated above, we affirm the judgment of the District Court dismissing plaintiffs’ complaint for lack of
jurisdiction and failure to state a claim under the ATCA.
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