Author's Note: This case interprets the federal
Alien Tort Claims Act or ATCA. (This moniker should have been
"ATS," because whether this statute actually authorized
individuals to bring "Claims" under the ATS was not
authoritatively resolved until the following year in the U.S.
Supreme Court's Sosa opinion (§11.5)). Most of the
Flores court's substantive analysis of the ATS has been
deleted. This opinion therefore focuses on the court's method
for ascertaining whether the sources in the International Court
of Justice Statute reveal a viable customary rule to apply in
this case. Flores is one of the rare instances where a
United States court applied Art. 38.1 of the ICJ Statute to determine
the content of International Law.
.....The 2004-2005 congressional and judicial debateabout whether a U.S. court should rely on foreign resources to support its decisionsis presented below ("Judicial Decisions"). Although the Flores court applied Article 38.1 of the ICJ Statute to the facts of this case, its judges thereby found that the plaintiffs did not establish a viable claim arising under Customary International Law.
I. Statement of the Case
..........................................................B. The "Law of Nations"
.....1. Definition of "Law
of Nations," or "Customary International Law,"
. . . 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 and
generally unfamiliar to lawyers and judges. These difficulties
are compounded by the fact that customary international lawas
the term itself impliesis 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. Accordingly, in determining what offenses violate
customary international law, courts must proceed with extraordinary
care and restraint.
First, in order for a principle to become part of customary
international law, . . . the principle must be more than merely
professed or aspirational.
.....2. Sources and Evidence of Customary International Law
In determining whether a particular rule is a part of customary international lawi.e., whether States universally abide by, or accede to, that rule out of a sense of legal obligation and mutual concerncourts must look to concrete evidence of the customs and practices of States. As we have recently stated, "we look primarily to the formal lawmaking and official actions of States and only secondarily to the works of scholars as evidence of the established practice of States."
In United States v. Yousef, we explained why the usage
and practice of Statesas opposed to judicial decisions
or the works of scholarsconstitute the primary sources
of customary international law. 327 F.3d at 99-103. In that case,
we looked to the Statute of the International Court of Justice
("ICJ Statute")to which the United States and
all members of the United Nations are partiesas a guide
for determining the proper sources of international law.
Plaintiffs Have Failed to Allege a Violation
The Rights to Life and Health Are Insufficiently Definite
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, . . . we have required that a plaintiff allege
a violation of a "clear and unambiguous" rule of customary
international law. . . .
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. .
. . The precept that "[h]uman beings are ... entitled to
a healthy and productive life in harmony with nature," 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," proclaims only nebulous notions that
are infinitely malleable.
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 [claiming that a State cannot pollute, or allow those under its control to pollute, even if the effect is felt only within its borders] . . . .
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 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. 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.
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. 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.
In considering the Universal Declaration's prohibition against
torture, the Filartiga Court cited extensive evidence that States,
in their domestic and international practices, repudiate official
torture. In particular, it recognized that torture is prohibited
under law by, inter alia, the constitutions of fifty-five States,
and noted the conclusion expressed by the Executive Branch of
our governmentthe political branch with principal responsibility
for conducting the international relations of the United Statesthat
"[t]here now exists an international consensus" against
official torture that "virtually all governments acknowledge,"
. . . . Accordingly, although Filartiga did indeed cite the Universal
Declaration, this non-binding General Assembly declaration was
only relevant to Filartiga's [1980, pre-U.N. Torture Convention]
analysis insofar as it accurately described the actual customs
and practices of States on the question of torture.
.....3. Other Multinational Declarations
Plaintiffs also rely on judicial decisions of international
tribunals in support of their claims. . . .
.....5. Expert Affidavits Submitted by Plaintiffs
Plaintiffs submitted to the District Court several affidavits
by international law scholars in support of their argument that
strictly intra national pollution violates customary international
law. After careful consideration, the District Court declined
to afford evidentiary weight to these affidavits. It determined
that the affidavits "are even less probative [than plaintiffs'
documentary evidence] of the existence of universal norms, especially
considering the vigorous academic debate over the content of
For the reasons stated above, we affirm the judgment of the District Court dismissing plaintiffs' complaint for . . . failure to state a claim under the ATCA.
.....Notes and Questions
.....2. Like Flores, the custom alleged in Filartiga was an ATS claim. In Paraguay, a policeman tortured and killed the brother/son of the plaintiff citizens of Paraguay. They successfully claimed that there was a clear customary practice among nations which prohibited such torture. In Flores, however, the same federal Court of Appeals in New York ruled against the Peruvian plaintiffs on their environmental ATS claim. Why was there was a different result in Paquete Habana/Filartiga than in Flores, as to whether customary International Law was proven by the respective plaintiffs?
.....3. Long after Paquete Habana, the U.S. Government similarly articulated that "customary international law is federal law, to be enunciated authoritatively by the federal courts." Filiartiga, Amicus Curiae brief for the United States at 1. For the argument thatabsent a clear rule from a federal statute or treatystate courts and legislatures in the United States are free to treat as they wish, or ignore, Customary International Law, see C. Bradley & J. Goldsmith, Customary International Law as Federal Common Law: A Critique of The Modern Position, 110 Harv. Law Rev. 815 (1997). This "revisionist scholars" position was rebuked by Professor Harold Koh, Assistant Secretary of State for Democracy, Human Rights and Labor, in Is International Law Really State Law?, 111 Harv. Law Rev. 1824 (1998).
.....4. As set forth below in the "Judicial Decisions" portion of this section, there is a simmering debate about judicial references to foreign legal sources. The Flores court relied extensively on the ICJ Statute's Article 38.1 sources, in a way that would most offend Chief Justice Rhenquist, Justices Scalia and Thomas, and the members of Congress who sponsored the legislation designed to curb such "abuse" in 2004. While the Flores court is correct, that the U.S. and all U.N. members are parties to the ICJ Statute, the materials in § 9.4 will illustrate that merely being a party to this Statute (treaty) does not automatically require the U.S., or any other national court, to rely on the Article 38.1 sources, each time that a plaintiff alleges a claim arising under International Law.
.....5. The March 2005 Agent Orange case applied ICJ Statute Article 38.1 to another environmental case. Relying on Flores, the court restated the proposition that: "A guide for determining proper sources of international law is the Statute of the International Court of Justice . . . to which the United States is a party." In re "Agent Orange" Product Liability Litigation, __ F.Supp.2d ___ (E.D.N.Y. 2005) [2005 Westlaw 729177]. The court observed that: "Customary international law is binding on all states, even in the absence of a particular state's consent, but may be modified within a state by subsequent legislation or a treaty, provided that the customary international law was not a peremptory norm (jus cogens)." Id., at ___. This term embraces norms such as genocide, from which no state may vary. (§11.2).
.....6. Regarding the Flores substantive law claim, what occurred in Peru is by no means unique. In April 2005, for example, 50,000-60,000 elderly residents protested over pollution from nearby factories in a rural village in China. Some 3,000 police officers halted this protest. In 2003, tens of thousands of Chinese villagers protested pollution in another provincea symptom of social unrest related to industrializing economies. See Rural Chinese Riot as Police Try to Halt Pollution Protest, NY Times on the Web, Apr. 14, 2005. Chapter 12 addresses international environmental pollution law.