LAWS666 — Unit 4 — Problems and Exercises

Human Rights Views Differing; ATCA Then, Now Business & Human Rights Approaches Internationally (Customary Law Versus General Principles)

1/4 Concerning the 1996 Freeport McMoran excerpted complaint, the initial count of the complaint alleging traditional gross human rights violations– meaning involving unlawful use of force, extra-judicial killings, etc.– is not included. It contained also no third generation human rights claim expressly alleging violation of traditional peoples’ rights to continue to live undisturbed in their current location (but that would have been an anachronism, because that kind of third generation claim only became more common in the early 2000s). But look closely at the two counts included, what might be termed the “international environmental law” and “cultural genocide” counts of the complaint. How would you analyze these counts in terms of sources of law? Do you or do you not think that the lawyers in questions stated a valid cause of action in each of these counts of their complaint? Why do you think the complaint was written that way?

2/4 Recognize that the Norwegian Government Petroleum Fund Ethics Council action is not a judicial determination. Instead, it is documentation in a structured “ESG” or Environment, Social & Governance-based investing process practiced increasingly by certain institutional investors, or at least offered in certain fund choices (although the traditional screens in ESG investing were more aimed at excluding companies in “sinful” industries like tobacco, alcohol and pharmaceutical contraceptives– so religious institutions could invest in accordance with their moral precepts). ESG was in the news late in the Trump Administration due to the US Department of Labor’s then effort to ban ESG investing under its supervision of retirement funds, allegedly because of its perceived impact on fossil fuel companies. We shall revisit ESG in more detail in Unit 5, but be aware that it operates by forcing divestiture of non-compliant investment, with a combined effect in terms of depressing the offending enterprise’s stock price (via sales of stock with fewer major buyers of the stock longer term, because ESG investing is traditionally aimed at institutions), or raising companies’ cost of borrowing. What does this ESG process emphasize, as opposed to the elements of a cause of action in a legal complaint?

3/4 Please analyse again what kind(s) of customary international law and similar claims (meaning more general principles of law, which arguably is more the source of human rights law; forget about any treaty law here) might succeed on Freeport’s facts. Glance at the Freeport complaint again to remind yourself what they are pleading presumably as the legal elements of their individual causes of action reflecting their view of the law (as opposed to the Norwegian Petroleum Fund decision memorandum’s factual conclusions). Then look at two different ways to approach the question of what the customary law might be in the Freeport case, understanding it as a “sources of law” question. Here please compare the 1997 CIEL white paper arguing for a broad interpretation of international environmental law, versus the Flores case’s treatment of a cause of action. How do you think the Freeport complaint would be adjudicated employing the CIEL approach versus under Flores’ approach? Now, what is your suspicion, do most other countries around the world follow Flores’ relatively conservative US-style sources interpretation, versus whether other countries’ courts might accept something closer to the CIEL analysis? Is the CIEL analysis really just a rewarmed third generation human rights analysis based upon a right to development as Dr. Marks discussed?

4/4 Now come two hypothetical problems addressing legal risk management, to be assigned to two different groups to resolve and report back. The first addresses monitoring potential foreign actions via the Corporate Legal Accountability Portal, and the second addresses the legal travails of a single company, Royal Dutch Shell, over time as it was pursued in litigation in different countries concerning its Niger River Delta operations in Nigeria. What is going on here?

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