TORTS, NATURAL RESOURCES, AND INTERNATIONAL LAW
| Jurisdiction | United States |
(Apr 1999)
TORTS, NATURAL RESOURCES, AND INTERNATIONAL LAW
University of Maine School of Law *
Portland, Maine, USA
This essay attempts to draw together very different strands of law. Narrowly, we focus on two federal statutes—the Alien Tort Claims Act and the Torture Victim Protection Act of 1991. More broadly, the essay discusses why a natural resources practitioners conference should have a serious discussion about a development company being sued for massive damages for alleged violations of human and environmental rights. This is not the dream final exam question in the international human rights or international environmental law seminar at Mystic Ivy Law School. This is real litigation. There promises to be more of it. The state of the world is such that any company doing a major resource development project should anticipate similar litigation may be in its future.
A Changed World
Permit a personal reminiscence. I started law school teaching an exact quarter century ago. Three of my first courses were torts, international law, and a new course, spurred by the 1973 oil embargo, called energy and law. I still live with all three in 1999.
Public international law in 1974 focused on "states", i.e. national governments. Their number had multiplied with the end of the age of colonialism. Memories of colonial abuses defined the relations between developed and developing states. The other grand division was between the Communist and capitalist blocs. The Cold War was in its third decade. You would have gotten a consensus in most academic circles that this division would last well beyond our lifetimes, if we managed to avoid nuclear annihilation.
Fundamental human rights documents had been drafted and ratified in the years following World War II. The 1972 Stockholm environmental summit began internationalizing a discipline only recently created in the United States. Individual rights and community rights were discussed but they remained well within the bounds of state control. Human rights discussions often seemed most useful for scoring political points. "Their" dictators violated human rights on massive scales even approaching genocide. "Our"—non-Communist dictators—took necessary national security measures that might inadvertently breach human rights covenants. But, human rights was not the stuff of serious government concern.
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A considerable emphasis of public international law, vintage 1974, was on protecting the rights of citizens and companies of the first world against the perceived lawlessness of the third world. Expropriation of property was a hot topic. The United States and other developed states demanded "prompt, adequate, and effective" compensation. The newly emerging nations asserted more flexible standards that would recognize the nation's right of sovereignty over its own resources, the developmental needs of the new nation, and the past history of success and exploitation by the first world. Even where major property expropriation was not at issue, the doctrine of state responsibility was asserted to provide citizens of first world nations a right to bring the expectations of their legal systems to their work in foreign lands. Foreign courts were often thought unsophisticated or corrupt. Disputes were best settled through diplomatic negotiations in which our State Department asserted a claim against the other state's executive branch on behalf of the individual harmed. The individual or the non-governmental organization was decidedly a secondary player in these exercises of state.
A remarkable twenty-five years have passed since 1974. A very different international law now looks at a very different world. This shapes the way a resource development project must look at its "world" in the 21st century.
What has changed from the world of 1974?
1) The revolutionary events of 1989-91 have changed the expectations of every nation. The end of the Cold War and the collapse of the Soviet empire may not be the "end of history" that Francis Fukuyama predicted.1 But it changed a fundamental element of national policy for most nations.
2) The end of the Cold War has changed the significance of "statehood." During the Cold War, a strong national government was seen as essential to national security. Now, other factors must validate national government power. Not surprisingly, governance has become both more global and more regional. International organizations have taken power from national governments. Trade agreements, human rights agreements, and environmental agreements place real limitations on state power.
At the same time as the nation state is ceding power to international bodies, it is facing pressure from separatist tendencies within its jurisdiction. Russia, France, Spain, Canada, and the United Kingdom all are attempting to determine the relationship of the nation to its parts. Separation, regional autonomy, and devolution flourish in the post-Cold War world.
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3) Economics has become world-wide. In 1974, most Americans could still imagine that economics revolved around Wall Street, Washington, and Main Street. Today, most American workers are aware of the threats and the opportunities of globalism.
4) Power comes from other sources than government. A particular illustration is the power of non-governmental organizations. The NGO has the advantages of single focus, access to mass communications from its own sources (e-mails, websites, mass mailing lists) and from the media eager for good footage and a relative freedom from bureaucracy. The skillful NGO can mobilize opinion (and with it government) almost overnight. The old aphorism of Washington bureaucrats—"assume your worst mistake will show up on the front page of the Washington Post"—has changed. Now anyone in power—government official, corporate official—should assume their misdeeds will be on some NGO's website.
5) The end of the Cold War has allowed a focus on other important matters—among them human rights and environmental protection. Both have worldwide significance. Science has helped to make the case that some environmental degradation—global warming, acid rain, nuclear radiation, devegetation, species destruction—has consequences well beyond the state causing the harm. Morals and politics make the same case for human rights violations. No longer can a state claim that what we do to our own people and environment is our own business.
6) Legal instruments have changed. Previously "soft law" has hardened. Environmental insults give rise to...
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