Human Rights Views Differing; ATCA Then, Now Business & Human Rights Approaches Internationally (Customary Law Versus General Principles)
1/3 Concerning the Freeport McMoran Grasberg gold and copper mine in Irian Jaya, Indonesia as ATCA litigation of the 1990s:
a. See the excerpted complaint filed April 29, 1996, in US District Court, Eastern District for Louisiana Civil Action 96-1476 Tom Beanal et al v. Freeport McMoran, (suit ultimately dismissed; a regular human rights count as first in the complaint was not included in the excerpt). For more factual background on the Freeport McMoran environmental issues, read the Norwegian Government Petroleum Fund document below, which is directed at ESG-style capital markets divestment but contains a factual description. Do you or do you not think that the lawyers in question stated a valid cause of action in their complaint? Why do you think it was written that way?
b. See the Norwegian Government Petroleum Fund-Global Council on Ethics, Recommendation of 15 February 2006 (on divestment of Freeport McMoran stock). The Fund is the investment vehicle into which the profits from Norway’s North Sea oil production go, while the Ethical Council is simply its advisory body. The Fund currently owns roughly 3% of all public securities outstanding anywhere on Planet Earth, so that it is the world’s largest institutional investor. You may treat it for these purposes as representative of the newer breed of socially conscious large investors, which is unusual only insofar as it publishes the basis for its investment decisions. You also may treat the Petroleum Fund Recommendation’s findings of fact as stating basically operationally what lay behind the Freeport-McMoran complaint’s stated second and third causes of action, beyond some claimed misbehaviour of individual Freeport-McMoran security personnel.
2/3 Concerning the law and sources doctrine again compare:
a. Center for International Environmental Law on human rights, the environment and economic development (CIEL; a 1997 white paper espousing what you might call a mid to late 1990s broad concept of international environmental law reaching back to the period immediately following the 1992 Rio conference– but do you see the “sustainable development” concept from Rio in the CIEL publication, why or why not?)
with
b. Flores v. Southern Peru Copper Corporation, 343 F. 3d 140 (2d Cir 2003) (now Flores’ ATCA ruminations have been superceded by the US Supreme Court’s Kiobel decision, but I want you to focus instead on what the Second Circuit says about sources doctrine and how you think it would have dealt with the Freeport case in terms of the three separate counts in the Freeport complaint).
Prior to Kiobel’s jurisdictional decision, the Flores case was broadly representative of lower courts’ narrow understanding of customary law human rights claims, or perhaps general principles analysis of international environmental law claims, notwithstanding the expert affidavits customarily offered (referred to in the Flores decision; and do they reflect international law sources doctrine, if you want to speak in technical terms?).
3/3 Concerning the ATCA-like cases now being brought abroad after Kiobel, please explore the following website left over from the UN Business and Human Rights process, with a special view to the kinds of litigation pending in different countries:
Business & Human Rights Resource Center– Corporate Legal Accountability Portal to see what some of those other countries are doing. The portal is leftover from a long-running UN examination of business and human rights obligations dating back to the early 2000s under the aegis of John Ruggie (when Kofie Annan was UN General Secretary).
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