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Joshua Ridenour – SHINE, SC Page 1 of 25

ATCA Reform - Neg


ALIEN TORT CLAIMS ACT REFORM - NEG
TOPICALITY – RESOLVED.................................................................................................................3
DEFINITION........................................................................................................................................................................3
INTERPRETATION............................................................................................................................................................3
VIOLATION.........................................................................................................................................................................3
STANDARDS........................................................................................................................................................................3
IMPACTS..............................................................................................................................................................................3
TOPICALITY – ENVIRONMENTAL POLICY..................................................................................5
STANDARDS........................................................................................................................................................................5
COUNTER – DEFINITIONS.............................................................................................................................................5
REASONS TO PREFER THE COUNTER-DEFINITIONS...........................................................................................5
VIOLATIONS.......................................................................................................................................................................5
IMPACTS..............................................................................................................................................................................6
INHERENCY...........................................................................................................................................7
1. Amlon Metals, Inc. v. FMC Corp..................................................................................................................................7
2. Aguinda v. Texaco..........................................................................................................................................................7
3. Beanal v. Freeport McMoRan, Inc................................................................................................................................8
4. Bano v. Union Carbide Corp.........................................................................................................................................9
5. Flores v. Southern Peru Copper Corporation...............................................................................................................9
6. Sarei v. Rio Tinto plc...................................................................................................................................................10
7. Six most prominent environmental claims under the ATCA........................................................................................11
SOLVENCY............................................................................................................................................12
ATCA CASES UNDER ENVIRONMENTAL CLAIMS................................................................................................12
1. Amlon Metals, Inc. v. FMC Corp. – Dismissed, No universal norm...........................................................................12
2. Aguinda v. Texaco – Dismissed, Procedural reasons..................................................................................................12
3. Beanal v. Freeport McMoRan, Inc. – Dismissed, No universal international norm...................................................14
4. Bano v. Union Carbide Corp. – Dismissed, Already litigated....................................................................................15
5. Flores v. Southern Peru Copper Corporation – Dismissed, Rights aren’t universal..................................................15
6. Sarei v. Rio Tinto plc – Political sabotage, Establishes customary international law for claims..............................16
7. Six most prominent environmental claims under the ATCA........................................................................................18
8. Customary international law is the only basis for ATCA claims................................................................................18
9. Right to life and health are too abstract to base a court claim on..............................................................................18
ATTITUDINAL BARRIER...............................................................................................................................................19
.................................................................................................................................................................19
DA#1 - CORPORATIONS HURT........................................................................................................20
Link: Aff expands claims against Multinational Corporations (MNCs).........................................................................20
Brink: Multinational Corporations wrongfully targeted by plaintiffs.............................................................................20
Impact: Innocent defendants pay a high price................................................................................................................20
DA #2 – COUNTRIES HURT...............................................................................................................22
Link: Jeopardized foreign investments............................................................................................................................22
Brink: No investment=industry shuts down, foreign companies leave...........................................................................22
Impact: Stagnate 3rd world economies/more disease.....................................................................................................22
DA #3 – SOFT POWER........................................................................................................................23
Internal Link: ATCA lawsuits hinder foreign policy interest..........................................................................................23
Impact: Loss of soft power................................................................................................................................................23
1. Without soft power the US loses leverage in international affairs..............................................................................23
2. Soft Power is key to a lot of issues..............................................................................................................................24
DA #4 – RULE OF LAW.......................................................................................................................25
Link: Aff. extends right of action for environmental damages under ATCA..................................................................25
Internal Link: Current interpretations twist the original nature/intent of the law..........................................................25
Impact: Rule of Law is key to stable society...................................................................................................................25
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ATCA Reform - Neg
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TOPICALITY – RESOLVED
DEFINITION
Resolve - to reach a firm decision about (Merriam Webster's Online Dictionary 2009
http://www.m-w.com/dictionary/resolved

INTERPRETATION
The wording of the resolution demands that we are 'Resolved', that we have reached a firm
decision about the Federal Government significantly reforming environmental policy.

VIOLATION
“Mandate 1a - The Alien Tort Claims Act shall be amended to create right of action for a
narrow category of environmental claims against United States corporations, in order to provide redress
to victims and impose civil liability in the form of punitive damages against defendant corporations.”

The Affirmative's first part of their mandate provides for a way to present a claim against “a
narrow category of environmental claims”. Just what are these claims? There is no specification. There
is no 'firm decision' about what claims these might be.

Secondly, “Specifically, severe environmental harm that has a direct, substantial, and
widespread effect on human health and well-being should be actionable under the statute”

The second part of the mandate again labels what such a claim might look like, but does not
give actual ways to determine which kind of cases could be brought to court.

The Affirmative does not uphold their burden to 'reach a firm decision' about the Alien Tort
Claims Act. Yes, they will reform it, but how?

This explodes Negative research ground. Now, instead of debating about reforming the ATCA,
we have to somehow predict all the different kinds of reforms, and what might fall underneath a vague
interpretation. There's no way to tell.

STANDARDS
Predictable Limits - A good debate is one that is limited to fewer possible cases. This allows
negatives to predict what they're going to hit, which means fairness and education; (2) checks infinite
prep time -- the aff gets however long they want to prepare; this is our limiting mechanism to ensure
that this doesn't get out of hand.

IMPACTS
Fairness & Education - (This is pre-fiat; you must look at it before case or anything related.) An
unlimited debate leads to an unfair skew between affirmative and negative prep time. When everyone
can run random Affirmative's and everyone goes 3-3 at every tournament, people will leave the event.
This means they won't be getting educated, which means that what you vote in this round actually
affects real people.

A Priori - There's a reason the Affirmative starts their case with definitions -- because the most basic
thing they have to do is affirm the resolution. You, as a judge, simply will not vote for a non-topical
case, no matter its merits, by virtue of the fact that it's not applicable to the debate rounds. The
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ATCA Reform - Neg
Affirmative case should not matter to you, judges.
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ATCA Reform - Neg
TOPICALITY – ENVIRONMENTAL POLICY
STANDARDS

Precision – Words have technical and exact meanings. Each word serves a purpose and definitions
should be precise and accurate in order to determine what the resolution truly means.

Field Contextualism – Experts in the field have a greater knowledge of technical definitions and
meanings, and therefore should be preferred.

Bright Line – Definitions should create a bright line for evaluating exactly what is and is not a
legitimate interpretation of the resolution. Ambiguous definitions allow the Affirmative team to shift
ground in the middle of the round. If the debaters do not clearly know the boundaries, argumentation is
necessarily restricted by time wasted in ambiguity.

COUNTER – DEFINITIONS

Environmental Policy
Dr. Natalia Mirovitskaya [editor] (PhD from the Russian Academy of Sciences in Economics and
Visiting Professor of Environmental Policy at Duke University), and Dr. William L Ascher [editor]
(PhD in Political Science from Yale and Professor of Government and Economics at Claremont
McKenna College) 2001, The Guide to Environmental Policy and Sustainable Development, Duke
University Press, p. 186 [Google Books]
Environmental policy includes regulations to prohibit or limit pollution and resource depletion;
incentives policies (including tax measures) to encourage environmental improvements to discourage
pollution and depletion, and direct environmental efforts to clean up, protect, or restore ecosystems.

Policy: A definite course or method of action selected from among alternatives and in light of given
conditions to guide and determine present and future decisions. (Merriam-Webster’s Online Dictionary
2009 http://m-w.com/policy)

REASONS TO PREFER THE COUNTER-DEFINITIONS

1.The environmental policy definition is the only one in the round. Aff presented a definition of
‘environmental law’, not ‘environmental policy.’ As we can see from our definition of ‘policy’ a
policy is not always a law.

2.Our definition of environmental policy upholds the standards of field contextualism,


precision, and it outlines exactly what an environmental policy would look like.

VIOLATIONS

1.Affirmative fails to create a regulation to ‘prohibit or limit pollution and resource depletion’ or
‘encourage environmental improvements to discourage pollution and depletion’ or advocate
‘direct environmental efforts to clean up, protect, or restore ecosystems.’
Joshua Ridenour – SHINE, SC Page 6 of 25
ATCA Reform - Neg
Secondly, the Affirmative plan does not fall under ‘environmental policy’ because they are reforming a
part of the Judiciary Act. The US Second Circuit Court of Appeal said the following in a Judgment
delivered in September 2000 about application of the Alien Tort Claims Act and the Torture Victims
protection Act:

“The Alien Tort Claims Act (ACTA) was adopted in 1789 as part of the original Judiciary Act. In its
original form, it made no assertion about legal rights; it simply asserted that ‘[t]he 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…” For almost two centuries, the statute lay relatively
dormant, supporting jurisdiction in only a handful of cases.As the result of increasing international
concern with human rights issues, however, litigants have recently begun to seek redress more
frequently under the ATCA”

http://www.sangam.org/JANAKA/ATCA.htm

This Alien Tort Claims Act is a judicial and human rights policy, not an environmental one. Reforming
an act to address the environment does not make it environmental policy.

IMPACTS

i. Jurisdiction

The judge has the option to vote for or against the resolution. If the case does not fall within the
boundaries of the resolution, the judge does not have the jurisdiction to vote for it.

ii. A priori

Topicality is an a priori issue – in the game of debate, you look to topicality first. If an affirmative team
is operating outside the jurisdiction of the resolution, the only reasonable decision is a negative ballot.

iii. Prima facie burden

The Affirmative team’s obligation is to present a case on its face that defends the truth of the resolution.
Regardless of whether their plan is a good or bad idea, they have failed to uphold their prima facie
burden if it does not mirror the terms of resolution.
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ATCA Reform - Neg
INHERENCY
[Note: Solvency and Inherency can be doubled into Significance, depending on the Aff case, and
the Neg team using this brief]

The Inherency part of this brief deals with the fact that cases can be brought into court on
environmental claims, as long as they violate an international or universal standard.

1. Amlon Metals, Inc. v. FMC Corp.


Dr. Natalie L. Bridgeman(JD, Program in Public Interest Law and Policy, UCLA School of Law;
Member, Human Rights Advocates; Member, National Lawyers Guild; Member, State Bar of
California; Trade, Environment, and Development Intern, Nautilus Institute; Law Clerk, NAFTA
Arbitrator; Editor-in-Chief, UCLA School of Law Journal of International Law and Foreign Affairs;
Independent Consulting Attorney, International Human Rights Council; Executive Director,
Accountability Counsel) “Human Rights Litigation Under the ATCA as a Proxy for Environmental
Claims” 2003 YALE HUMAN RIGHTS AND DEVELOPMENT LAW JOURNAL (Accessed via General
OneFile Research Database)

The first case to attempt to use the ATCA for environmental torts was Amlon Metals, Inc. v. FMC Corp.
(95) The case involved a shipment of copper residue from the United States to England. When the
materials arrived in England, the plaintiff realized that the substances were not merely copper residue,
but hazardous waste, and refused to receive the shipment. The court looked to the U.S. environmental
statute, the Resource Conservation and Recovery Act (RCRA), (96) Principle 21 of the Stockholm
Declaration (97) and the Third Restatement on Foreign Relations (98) as possible bases for finding a
violation of customary international environmental law. (99) After dismissing RCRA as an
unacceptable independent basis for a cause of action, (100) the court examined whether Principle 21
and the Third Restatement reflected customary international law for the ATCA claim.
Principle 21 asserts that states have a responsibility "to ensure that activities within their
jurisdiction or control do not cause damage to the environment of other States or of areas beyond the
limits of national jurisdiction." (101) The Restatement echoes this assertion and further states that if the
activities have "caused significant injury" or risk of injury extraterritorially "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." (102)
Although Principle 21 and the Restatement were directly on point in Amlon, the court found that both
sources failed to reflect binding sources of international law. The court found that Principle 21 was only
meant as a guiding principle, and that the Restatement was too specific to the U.S., and therefore not a
reflection of a universal norm. Because the plaintiff's case was based only on RCRA and Principle 21,
neither of which were cognizable under the ATCA, it was dismissed. (103)
Although Amlon demonstrated what is insufficient to allege environmental torts that violate the law of
nations, it did not state what is sufficient to state such a claim. Amlon suggests that while international
environmental treaties might be used as a basis for finding customary international law, it must be a
treaty that delineates specific obligations on member nations--thus creating a universal, definable and
obligatory norm.

2. Aguinda v. Texaco
Dr. Natalie L. Bridgeman(JD, Program in Public Interest Law and Policy, UCLA School of Law;
Member, Human Rights Advocates; Member, National Lawyers Guild; Member, State Bar of
California; Trade, Environment, and Development Intern, Nautilus Institute; Law Clerk, NAFTA
Joshua Ridenour – SHINE, SC Page 8 of 25
ATCA Reform - Neg
Arbitrator; Editor-in-Chief, UCLA School of Law Journal of International Law and Foreign Affairs;
Independent Consulting Attorney, International Human Rights Council; Executive Director,
Accountability Counsel) “Human Rights Litigation Under the ATCA as a Proxy for Environmental
Claims” 2003 YALE HUMAN RIGHTS AND DEVELOPMENT LAW JOURNAL (Accessed via General
OneFile Research Database)

In Aguinda v. Texaco (Aguinda I), (104) Ecuadorian plaintiffs sued Texaco for severe long-term
contamination and destruction of Ecuadorian tropical rain forests. (105) In addition, the complaint
alleged harm to forest-dwelling indigenous peoples and destruction of their property and the stability of
Amazon basin habitats. (106) As in Amlon, the largest hurdle in Aguinda I was alleging an international
environmental law violation that is "definable, obligatory (rather than hortatory), and universally
condemned." (107) When Aguinda I was brought in 1994, the most recent equivalent to Principle 21 of
the Stockholm Declaration was Principle 2 of the Rio Declaration. (108) Aguinda I relied on Principle
2, under which states have "the responsibility to ensure that activities within their jurisdiction or control
do not cause damage to the environment of other States or areas beyond the limits of national
jurisdiction." (109) Judge Vincent L. Broderick also found persuasive the fact that U.S. domestic
environmental law would have prohibited Texaco's conduct had it been in the United States. He stated
that the U.S. laws are
... relevant as confirming United States adherence to international
commitments to control such wastes. This tends to support the
appropriateness of permitting suit under 28 U.S.C. [section] 1350 if
there were established misuse of hazardous waste of sufficient
magnitude to amount to a violation of international law. (110)

3. Beanal v. Freeport McMoRan, Inc.


Dr. Natalie L. Bridgeman(JD, Program in Public Interest Law and Policy, UCLA School of Law;
Member, Human Rights Advocates; Member, National Lawyers Guild; Member, State Bar of
California; Trade, Environment, and Development Intern, Nautilus Institute; Law Clerk, NAFTA
Arbitrator; Editor-in-Chief, UCLA School of Law Journal of International Law and Foreign Affairs;
Independent Consulting Attorney, International Human Rights Council; Executive Director,
Accountability Counsel) “Human Rights Litigation Under the ATCA as a Proxy for Environmental
Claims” 2003 YALE HUMAN RIGHTS AND DEVELOPMENT LAW JOURNAL (Accessed via General
OneFile Research Database)

As discussed above, in 1997, Beanal v. Freeport McMoRan, Inc. (125) was filed in the Fifth Circuit and
concerned human rights violations and environmental torts conducted against the Amungme tribe of
Indonesia as a result of Freeport's mining operations there. (126) Like Aguinda, Beanal was dismissed,
but not before substantial discussion of whether international environmental law has risen to the level
of customary international law for ATCA purposes. From the outset, it would seem that Beanal was
better positioned to survive a motion to dismiss than Aguinda because it involved environmental and
human rights claims. Particularly because the human rights claims were related to the environmental
harm, it would have seemed likely that even if the environmental claims were dismissed, some of the
human rights claims--if successful-would remedy some of the same grievances as alleged in the
environmental claims.
In Beanal, the court considered whether "Freeport's alleged environmental practices [violated]
the law of nations." (127) The environmental harms specifically alleged included:
... that defendant corporations have failed to engage in a zero
waste policy, unacceptable enclosed waste management system,
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have failed to maximize environmental rehabilitation, have failed
to engage in an appropriate acid leachate control policy, have
failed to adequately monitor the destruction of the natural
resources of Irian Jaya and have disregarded and breached its
international duty to protect one of the last great natural rain
forests and alpine areas in the world. (128)
Once again, the court found that these facts did not allege a violation of a "universal, definable, and
obligatory" international norm. (129) The court did, however, cite dicta in Aguinda I for the proposition
that Section "1350 may be applicable to international environmental torts." (130) The challenge in
Beanal was that once the court reached the environmental claims, it had already concluded that
Freeport was not a state actor. Therefore, any environmental torts that had the potential to lead to
Freeport's liability would have to have been recognized as one of the "handful of crimes" that are
actionable for private as well as state actors.
The Beanal plaintiffs relied on principles of international environmental law to support their
environmental claims-namely, the Polluter Pays Principle; the Precautionary Principle; the Proximity
Principle; the good-neighborliness principle and Principle 21 / Principle 2 from the Stockholm and Rio
Declarations. (131) The court then ironically offered Philippe Sands' critique of these principles in
support of why the plaintiffs failed to state a claim:

4. Bano v. Union Carbide Corp


Dr. Natalie L. Bridgeman(JD, Program in Public Interest Law and Policy, UCLA School of Law;
Member, Human Rights Advocates; Member, National Lawyers Guild; Member, State Bar of
California; Trade, Environment, and Development Intern, Nautilus Institute; Law Clerk, NAFTA
Arbitrator; Editor-in-Chief, UCLA School of Law Journal of International Law and Foreign Affairs;
Independent Consulting Attorney, International Human Rights Council; Executive Director,
Accountability Counsel) “Human Rights Litigation Under the ATCA as a Proxy for Environmental
Claims” 2003 YALE HUMAN RIGHTS AND DEVELOPMENT LAW JOURNAL (Accessed via General
OneFile Research Database)

In Bano, plaintiffs who suffered from the devastating 1984 chemical disaster in Bhopal, India sued
Union Carbide Corporation for the tremendous loss of life and environmental harms associated with the
accident. (136) Bano v. Union Carbide Corp., decided in November, 2001, dismissed the plaintiffs'
environmental claims under the ATCA based on the theory that the claims "were fully litigated and
settled in India," and therefore, did not reach the issue of whether the "complaint failed to allege a
violation of well-established norms of international law as required under the ATCA." (137) This case
was a lost opportunity for evaluating environmental principles as part of the law of nations because the
facts were a dramatic example of the link between human rights and the environment. Because the
environmental pollution in Bano wiped out large segments of the local population, claims for human
rights violations might have been successful and the damages may have worked to remedy the
environmental harm.

5. Flores v. Southern Peru Copper Corporation


Dr. Natalie L. Bridgeman(JD, Program in Public Interest Law and Policy, UCLA School of Law;
Member, Human Rights Advocates; Member, National Lawyers Guild; Member, State Bar of
California; Trade, Environment, and Development Intern, Nautilus Institute; Law Clerk, NAFTA
Arbitrator; Editor-in-Chief, UCLA School of Law Journal of International Law and Foreign Affairs;
Independent Consulting Attorney, International Human Rights Council; Executive Director,
Accountability Counsel) “Human Rights Litigation Under the ATCA as a Proxy for Environmental
Joshua Ridenour – SHINE, SC Page 10 of 25
ATCA Reform - Neg
Claims” 2003 YALE HUMAN RIGHTS AND DEVELOPMENT LAW JOURNAL (Accessed via General
OneFile Research Database)

Flores is another case of plaintiffs alleging a mining corporation's violations of international


environmental law. In Flores, eight Peruvian citizens claimed that the Southern Peru Copper
Corporation's ("SPCC") mining operations in and around Ilo, Peru caused environmental pollution
resulting in their asthma and lung disease, which "violated their rights to life, health, and sustainable
development." (138)

6. Sarei v. Rio Tinto plc


Dr. Natalie L. Bridgeman(JD, Program in Public Interest Law and Policy, UCLA School of Law;
Member, Human Rights Advocates; Member, National Lawyers Guild; Member, State Bar of
California; Trade, Environment, and Development Intern, Nautilus Institute; Law Clerk, NAFTA
Arbitrator; Editor-in-Chief, UCLA School of Law Journal of International Law and Foreign Affairs;
Independent Consulting Attorney, International Human Rights Council; Executive Director,
Accountability Counsel) “Human Rights Litigation Under the ATCA as a Proxy for Environmental
Claims” 2003 YALE HUMAN RIGHTS AND DEVELOPMENT LAW JOURNAL (Accessed via General
OneFile Research Database)

Sarei v. Rio Tinto plc (141) addressed whether environmental torts may violate the law of nations under
the ATCA, but in the end, the case has little precedential value because the entire case was dismissed
based on the political question doctrine. (142) Despite its dismissal, Sarei contains important analysis
of environmental claims under the ATCA. As discussed above, Sarei involves claims for redress of
human rights and environmental torts by residents of the Papua New Guinea island of Bougainville
against the British mining company Rio Tinto plc and the Australian corporation Rio Tinto Limited.
The environmental harms alleged in Sarei are divided into two categories: (a) rights to life and
health and (b) sustainable development and the U.N. Convention on the Law of the Sea (UNCLOS). In
the rights to life and health section of the decision, the plaintiffs rely on statements by an international
law expert, (143) who in turn cites international and regional human rights conventions. (144) This is
the first ATCA case that has attempted to use such treaties to make an explicit appeal to 'environmental
human rights.' It is a logical point at which to meld already accepted human rights norms with
emerging environmental norms to create human rights and environmental protection under the ATCA.
The plaintiffs argue, quoting an Inter-American Commission report "Conditions of severe
environmental pollution, which may cause serious physical illness, impairment and suffering on the
part of the local populace, are inconsistent with the right to be respected as a human being." (145) As
further evidence of a human right to environmental protection, the plaintiffs invoke the famous
Gabcikovo Darn Case, where the International Court of Justice held that environmental protection is "a
vital part of contemporary human rights doctrine, for it is a sine qua non for numerous human rights
such as the right to health and the right to life itself." (146)
Judge Morrow rejected plaintiffs' rights to life and health claims on the grounds that none of
them were universal, definable and obligatory. (147) As she concluded in granting the motion to
dismiss for the rights to health and life claims, "Courts addressing the issue have consistently
determined that allegations of environmental harm do not state a claim under the law of nations." (148)
For reasons that parallel the analysis in the rights to life and health section, the Court granted
the defendants' motion to dismiss the sustainable development claims. (149) The final environmental
claim, but for the political question doctrine, would have survived the motion to dismiss. Judge
Morrow found that "plaintiffs have adequately stated a claim for violation of the customary
international law reflected in UNCLOS." (150)
Joshua Ridenour – SHINE, SC Page 11 of 25
ATCA Reform - Neg
7. Six most prominent environmental claims under the ATCA
Dr. Natalie L. Bridgeman(JD, Program in Public Interest Law and Policy, UCLA School of Law;
Member, Human Rights Advocates; Member, National Lawyers Guild; Member, State Bar of
California; Trade, Environment, and Development Intern, Nautilus Institute; Law Clerk, NAFTA
Arbitrator; Editor-in-Chief, UCLA School of Law Journal of International Law and Foreign Affairs;
Independent Consulting Attorney, International Human Rights Council; Executive Director,
Accountability Counsel) “Human Rights Litigation Under the ATCA as a Proxy for Environmental
Claims” 2003 YALE HUMAN RIGHTS AND DEVELOPMENT LAW JOURNAL (Accessed via General
OneFile Research Database)

As seen above, the ATCA provides plaintiffs with the best chances of success in suits against
corporations for violations of the law of nations. However, compared to suits that allege human rights
violations, success has not yet been borne out in claims alleging environmental torts in violation of the
law of nations. Of the six main cases that have directly alleged environmental torts under the ATCA--
Amlon, Aguinda, Beanal, Bano, Flores and Sarei--all had the environmental claims dismissed--either
substantively or because of a procedural dismissal of all claims. In Amlon, the environmental claims
alleged under Principle 21 of the Stockholm Declaration and the Third Restatement of Foreign
Relations Law of the United States were dismissed for failure to establish a violation of the law of
nations. In Aguinda, Judge Broderick asserted that there may well have been a violation of the law of
nations for the environmental torts alleged, but in the end, the appellate court dismissed the claims on
the grounds of forum non conveniens. In Beanal, after some discussion of whether the conduct alleged
violated the environmental principles discussed by the plaintiffs, the court dismissed the action for
failure to allege violation of a universal, definable and obligatory international norm. Bano never
reached the issue due to the court's determination that the claims had been settled in India. In Flores, as
in Beanal, the court found that the environmental allegations were not violations of the law of nations.
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ATCA Reform - Neg
SOLVENCY
[Note: Solvency and Inherency can be doubled into Significance, depending on the Aff case, and
the Neg team using this brief]

ATCA CASES UNDER ENVIRONMENTAL CLAIMS

1. Amlon Metals, Inc. v. FMC Corp. – Dismissed, No universal norm


Dr. Natalie L. Bridgeman(JD, Program in Public Interest Law and Policy, UCLA School of Law;
Member, Human Rights Advocates; Member, National Lawyers Guild; Member, State Bar of
California; Trade, Environment, and Development Intern, Nautilus Institute; Law Clerk, NAFTA
Arbitrator; Editor-in-Chief, UCLA School of Law Journal of International Law and Foreign Affairs;
Independent Consulting Attorney, International Human Rights Council; Executive Director,
Accountability Counsel) “Human Rights Litigation Under the ATCA as a Proxy for Environmental
Claims” 2003 YALE HUMAN RIGHTS AND DEVELOPMENT LAW JOURNAL (Accessed via General
OneFile Research Database)

The first case to attempt to use the ATCA for environmental torts was Amlon Metals, Inc. v. FMC Corp.
(95) The case involved a shipment of copper residue from the United States to England. When the
materials arrived in England, the plaintiff realized that the substances were not merely copper residue,
but hazardous waste, and refused to receive the shipment. The court looked to the U.S. environmental
statute, the Resource Conservation and Recovery Act (RCRA), (96) Principle 21 of the Stockholm
Declaration (97) and the Third Restatement on Foreign Relations (98) as possible bases for finding a
violation of customary international environmental law. (99) After dismissing RCRA as an
unacceptable independent basis for a cause of action, (100) the court examined whether Principle 21
and the Third Restatement reflected customary international law for the ATCA claim.
Principle 21 asserts that states have a responsibility "to ensure that activities within their
jurisdiction or control do not cause damage to the environment of other States or of areas beyond the
limits of national jurisdiction." (101) The Restatement echoes this assertion and further states that if the
activities have "caused significant injury" or risk of injury extraterritorially "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." (102)
Although Principle 21 and the Restatement were directly on point in Amlon, the court found that both
sources failed to reflect binding sources of international law. The court found that Principle 21 was only
meant as a guiding principle, and that the Restatement was too specific to the U.S., and therefore not a
reflection of a universal norm. Because the plaintiff's case was based only on RCRA and Principle 21,
neither of which were cognizable under the ATCA, it was dismissed. (103)
Although Amlon demonstrated what is insufficient to allege environmental torts that violate the law of
nations, it did not state what is sufficient to state such a claim. Amlon suggests that while international
environmental treaties might be used as a basis for finding customary international law, it must be a
treaty that delineates specific obligations on member nations--thus creating a universal, definable and
obligatory norm.

2. Aguinda v. Texaco – Dismissed, Procedural reasons


Dr. Natalie L. Bridgeman(JD, Program in Public Interest Law and Policy, UCLA School of Law;
Member, Human Rights Advocates; Member, National Lawyers Guild; Member, State Bar of
California; Trade, Environment, and Development Intern, Nautilus Institute; Law Clerk, NAFTA
Arbitrator; Editor-in-Chief, UCLA School of Law Journal of International Law and Foreign Affairs;
Joshua Ridenour – SHINE, SC Page 13 of 25
ATCA Reform - Neg
Independent Consulting Attorney, International Human Rights Council; Executive Director,
Accountability Counsel) “Human Rights Litigation Under the ATCA as a Proxy for Environmental
Claims” 2003 YALE HUMAN RIGHTS AND DEVELOPMENT LAW JOURNAL (Accessed via General
OneFile Research Database)

In Aguinda v. Texaco (Aguinda I), (104) Ecuadorian plaintiffs sued Texaco for severe long-term
contamination and destruction of Ecuadorian tropical rain forests. (105) In addition, the complaint
alleged harm to forest-dwelling indigenous peoples and destruction of their property and the stability of
Amazon basin habitats. (106) As in Amlon, the largest hurdle in Aguinda I was alleging an
international environmental law violation that is "definable, obligatory (rather than hortatory), and
universally condemned." (107) When Aguinda I was brought in 1994, the most recent equivalent to
Principle 21 of the Stockholm Declaration was Principle 2 of the Rio Declaration. (108) Aguinda I
relied on Principle 2, under which states have "the responsibility to ensure that activities within their
jurisdiction or control do not cause damage to the environment of other States or areas beyond the
limits of national jurisdiction." (109) Judge Vincent L. Broderick also found persuasive the fact that
U.S. domestic environmental law would have prohibited Texaco's conduct had it been in the United
States. He stated that the U.S. laws are
... relevant as confirming United States adherence to international
commitments to control such wastes. This tends to support the
appropriateness of permitting suit under 28 U.S.C. [section] 1350 if
there were established misuse of hazardous waste of sufficient
magnitude to amount to a violation of international law. (110)
This statement was the closest any court had come to recognizing a violation of the law of nations
rooted in practice inconsistent with domestic environmental law that has an international "soft law"
corollary. (111) Judge Broderick suggested that, if the hazardous waste "misuse" were large enough,
plaintiffs could establish a violation of the law of nations sufficient to state a claim under the ATCA. He
limited the statement, however, by carving out "detailed statutes and regulations" for fear that if they
became part of customary international law, they would supersede legislative intent of contrarily
detailed statutes and regulations. (112) Further, he stated that steps "initiated or assisted in the United
States" would be the most probative and would limit discovery along these lines. (113)
Following Aguinda I, the case was dismissed on grounds of forum non conveniens (FNC),
comity and failure to join an indispensable party. (114) On appeal, the Republic of Ecuador and the
state-owned oil company Petoecuador's untimely motions to intervene in the case were denied. (115)
Shortly thereafter, Jota v. Texaco (116) was filed and the Second Circuit Court of Appeals reversed the
lower court's dismissal on FNC and comity grounds and partially reversed the lower court on the
joinder issue. The Second Circuit remanded the case back to the hands of Judge Rakoff who ordered
further briefing on the FNC and comity issues. (117) Following denial of a motion to disqualify Judge
Rakoff for conflict of interest (118) and affirmation of the denial on appeal to the Second Circuit, (119)
Judge Rakoff dismissed the case once again on the same grounds upon which the Second Circuit had
earlier reversed Judge Rakoff-forum non conveniens. (120) Most recently, the appeal from Judge
Rakoff's Aguinda VIII decision reached the Second Circuit who affirmed dismissal of the case on
forum non conveniens grounds with a modification permitting the plaintiffs more time to re-file their
actions in Ecuador. (121)
In its eight-year history of litigation, the only decision that addressed whether a violation of
international environmental law provides a cause of action under the ATCA was in dicta in the initial
case, Aguinda I. (122) Even though the issue was never debated in further Aguinda appeals for
procedural reasons, it is unlikely that the case could have been affirmed on international environmental
law grounds. As noted by Armin Rosencranz and Richard Campbell, "[l]ack of international consensus
Joshua Ridenour – SHINE, SC Page 14 of 25
ATCA Reform - Neg
on environmental norms is one reason why courts have been reluctant to recognize environmental
abuses, absent accompanying human rights violations, as causes of action under the ATCA." (123)
Nonetheless, Judge Broderick's dicta--which seemed to approve of Principle 2 of the Rio Declaration as
at least a partial basis for the claim (124)--may serve, and has served, as a starting point for analysis of
environmental claims in subsequent ATCA cases.

3. Beanal v. Freeport McMoRan, Inc. – Dismissed, No universal international norm


Dr. Natalie L. Bridgeman(JD, Program in Public Interest Law and Policy, UCLA School of Law;
Member, Human Rights Advocates; Member, National Lawyers Guild; Member, State Bar of
California; Trade, Environment, and Development Intern, Nautilus Institute; Law Clerk, NAFTA
Arbitrator; Editor-in-Chief, UCLA School of Law Journal of International Law and Foreign Affairs;
Independent Consulting Attorney, International Human Rights Council; Executive Director,
Accountability Counsel) “Human Rights Litigation Under the ATCA as a Proxy for Environmental
Claims” 2003 YALE HUMAN RIGHTS AND DEVELOPMENT LAW JOURNAL (Accessed via General
OneFile Research Database)

As discussed above, in 1997, Beanal v. Freeport McMoRan, Inc. (125) was filed in the Fifth Circuit and
concerned human rights violations and environmental torts conducted against the Amungme tribe of
Indonesia as a result of Freeport's mining operations there. (126) Like Aguinda, Beanal was dismissed,
but not before substantial discussion of whether international environmental law has risen to the level
of customary international law for ATCA purposes. From the outset, it would seem that Beanal was
better positioned to survive a motion to dismiss than Aguinda because it involved environmental and
human rights claims. Particularly because the human rights claims were related to the environmental
harm, it would have seemed likely that even if the environmental claims were dismissed, some of the
human rights claims--if successful-would remedy some of the same grievances as alleged in the
environmental claims.
In Beanal, the court considered whether "Freeport's alleged environmental practices [violated]
the law of nations." (127) The environmental harms specifically alleged included:
... that defendant corporations have failed to engage in a zero
waste policy, unacceptable enclosed waste management system,
have failed to maximize environmental rehabilitation, have failed
to engage in an appropriate acid leachate control policy, have
failed to adequately monitor the destruction of the natural
resources of Irian Jaya and have disregarded and breached its
international duty to protect one of the last great natural rain
forests and alpine areas in the world. (128)
Once again, the court found that these facts did not allege a violation of a "universal, definable, and
obligatory" international norm. (129) The court did, however, cite dicta in Aguinda I for the proposition
that Section "1350 may be applicable to international environmental torts." (130) The challenge in
Beanal was that once the court reached the environmental claims, it had already concluded that
Freeport was not a state actor. Therefore, any environmental torts that had the potential to lead to
Freeport's liability would have to have been recognized as one of the "handful of crimes" that are
actionable for private as well as state actors.
The Beanal plaintiffs relied on principles of international environmental law to support their
environmental claims-namely, the Polluter Pays Principle; the Precautionary Principle; the Proximity
Principle; the good-neighborliness principle and Principle 21 / Principle 2 from the Stockholm and Rio
Declarations. (131) The court then ironically offered Philippe Sands' critique of these principles in
support of why the plaintiffs failed to state a claim:
Joshua Ridenour – SHINE, SC Page 15 of 25
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Of these general principles and rules only Principle 21 / Principle
2 and the good neighborliness / international cooperation principle
are sufficiently substantive at this time to be capable of
establishing the basis of an international cause of action ... The
status and effect of the others remains inconclusive, although they
may bind as treaty obligations or, in limited circumstances, as
customary obligations. (132)
The court rejected Sands' notion that any of the alliterative principles formed the basis for an
environmental cause of action under the ATCA. Instead, the court held that, "standing alone, [the
principles] do not constitute international torts for which there is universal consensus in the
international community as to their binding status and their content." (133) Finally, the court pointed
out that the principles apply to states, not "nonstate corporations." (134) Because the principles only
bind states, only state actors could violate them. Since the Freeport Corporation was not found to be a
state actor, even principles binding on states would have failed to provide a cause of action for the
plaintiffs in Beanal.
As was the case in Amlon and Aguinda I, the Beanal court did not preclude environmental torts
from eventually becoming customary international law and thus actionable under the ATCA. (135) All
three courts agreed, however, that at this stage in the development of international environmental law,
the declarations, restatements and principles were not universal, definable and obligatory.

4. Bano v. Union Carbide Corp. – Dismissed, Already litigated


Dr. Natalie L. Bridgeman(JD, Program in Public Interest Law and Policy, UCLA School of Law;
Member, Human Rights Advocates; Member, National Lawyers Guild; Member, State Bar of
California; Trade, Environment, and Development Intern, Nautilus Institute; Law Clerk, NAFTA
Arbitrator; Editor-in-Chief, UCLA School of Law Journal of International Law and Foreign Affairs;
Independent Consulting Attorney, International Human Rights Council; Executive Director,
Accountability Counsel) “Human Rights Litigation Under the ATCA as a Proxy for Environmental
Claims” 2003 YALE HUMAN RIGHTS AND DEVELOPMENT LAW JOURNAL (Accessed via General
OneFile Research Database)

In Bano, plaintiffs who suffered from the devastating 1984 chemical disaster in Bhopal, India sued
Union Carbide Corporation for the tremendous loss of life and environmental harms associated with the
accident. (136) Bano v. Union Carbide Corp., decided in November, 2001, dismissed the plaintiffs'
environmental claims under the ATCA based on the theory that the claims "were fully litigated and
settled in India," and therefore, did not reach the issue of whether the "complaint failed to allege a
violation of well-established norms of international law as required under the ATCA." (137) This case
was a lost opportunity for evaluating environmental principles as part of the law of nations because the
facts were a dramatic example of the link between human rights and the environment. Because the
environmental pollution in Bano wiped out large segments of the local population, claims for human
rights violations might have been successful and the damages may have worked to remedy the
environmental harm.

5. Flores v. Southern Peru Copper Corporation – Dismissed, Rights aren’t universal


Dr. Natalie L. Bridgeman(JD, Program in Public Interest Law and Policy, UCLA School of Law;
Member, Human Rights Advocates; Member, National Lawyers Guild; Member, State Bar of
California; Trade, Environment, and Development Intern, Nautilus Institute; Law Clerk, NAFTA
Arbitrator; Editor-in-Chief, UCLA School of Law Journal of International Law and Foreign Affairs;
Independent Consulting Attorney, International Human Rights Council; Executive Director,
Joshua Ridenour – SHINE, SC Page 16 of 25
ATCA Reform - Neg
Accountability Counsel) “Human Rights Litigation Under the ATCA as a Proxy for Environmental
Claims” 2003 YALE HUMAN RIGHTS AND DEVELOPMENT LAW JOURNAL (Accessed via General
OneFile Research Database)

Flores is another case of plaintiffs alleging a mining corporation's violations of international


environmental law. In Flores, eight Peruvian citizens claimed that the Southern Peru Copper
Corporation's ("SPCC") mining operations in and around Ilo, Peru caused environmental pollution
resulting in their asthma and lung disease, which "violated their rights to life, health, and sustainable
development." (138)
According to Judge Haight, the plaintiffs in Flores "attempt to distinguish the present case from
those discussed above [Aguinda, Amlon and Beanal] by characterizing their claims as based on human
rights law, rather than environmental law, and by pointing to the specific rights they invoke, i.e. the
right to life, right to health, and right to sustainable development. But the labels plaintiffs affix to their
claims cannot be determinative." (139) The plaintiffs in Flores fail to use human rights as a proxy for
environmental claims (if they are indeed making this attempt as the court alleges) because they base
their action on human rights claims that are not actionable under the ATCA.
The Court concludes, "plaintiffs have not demonstrated that high levels of environmental
pollution, causing harm to human life, health, and sustainable development within a nation's borders,
violate any well-established rules of customary international law." (140) Flores thus holds that plaintiffs
in the Southern District of New York must demonstrate that the environmental harm they allege is
trans-boundary in nature. More significantly, Flores suggests that claims under international
environmental law will not be successful when guised as human rights claims unless the human rights
claims themselves are well-established as part of the "law of nations."
In Flores, as in many of the cases above, the court granted the defendant's motion to dismiss
because, according to Judge Haight, the rights to life, health, and sustainable development have not yet
become non-derogable.

6. Sarei v. Rio Tinto plc – Political sabotage, Establishes customary international law for claims
Dr. Natalie L. Bridgeman(JD, Program in Public Interest Law and Policy, UCLA School of Law;
Member, Human Rights Advocates; Member, National Lawyers Guild; Member, State Bar of
California; Trade, Environment, and Development Intern, Nautilus Institute; Law Clerk, NAFTA
Arbitrator; Editor-in-Chief, UCLA School of Law Journal of International Law and Foreign Affairs;
Independent Consulting Attorney, International Human Rights Council; Executive Director,
Accountability Counsel) “Human Rights Litigation Under the ATCA as a Proxy for Environmental
Claims” 2003 YALE HUMAN RIGHTS AND DEVELOPMENT LAW JOURNAL (Accessed via General
OneFile Research Database)

Sarei v. Rio Tinto plc (141) addressed whether environmental torts may violate the law of nations under
the ATCA, but in the end, the case has little precedential value because the entire case was dismissed
based on the political question doctrine. (142) Despite its dismissal, Sarei contains important analysis
of environmental claims under the ATCA. As discussed above, Sarei involves claims for redress of
human rights and environmental torts by residents of the Papua New Guinea island of Bougainville
against the British mining company Rio Tinto plc and the Australian corporation Rio Tinto Limited.
The environmental harms alleged in Sarei are divided into two categories: (a) rights to life and
health and (b) sustainable development and the U.N. Convention on the Law of the Sea (UNCLOS). In
the rights to life and health section of the decision, the plaintiffs rely on statements by an international
law expert, (143) who in turn cites international and regional human rights conventions. (144) This is
the first ATCA case that has attempted to use such treaties to make an explicit appeal to 'environmental
Joshua Ridenour – SHINE, SC Page 17 of 25
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human rights.' It is a logical point at which to meld already accepted human rights norms with
emerging environmental norms to create human rights and environmental protection under the ATCA.
The plaintiffs argue, quoting an Inter-American Commission report "Conditions of severe
environmental pollution, which may cause serious physical illness, impairment and suffering on the
part of the local populace, are inconsistent with the right to be respected as a human being." (145) As
further evidence of a human right to environmental protection, the plaintiffs invoke the famous
Gabcikovo Darn Case, where the International Court of Justice held that environmental protection is "a
vital part of contemporary human rights doctrine, for it is a sine qua non for numerous human rights
such as the right to health and the right to life itself." (146)
Judge Morrow rejected plaintiffs' rights to life and health claims on the grounds that none of
them were universal, definable and obligatory. (147) As she concluded in granting the motion to
dismiss for the rights to health and life claims, "Courts addressing the issue have consistently
determined that allegations of environmental harm do not state a claim under the law of nations." (148)
For reasons that parallel the analysis in the rights to life and health section, the Court granted
the defendants' motion to dismiss the sustainable development claims. (149) The final environmental
claim, but for the political question doctrine, would have survived the motion to dismiss. Judge
Morrow found that "plaintiffs have adequately stated a claim for violation of the customary
international law reflected in UNCLOS." (150)
The plaintiffs' claim under UNCLOS would have survived, not because UNCLOS is a treaty of
the United States that creates a cause of action under the ATCA, but because, with 166 ratifications
(excluding the United States which is only a signatory), UNCLOS has become part of customary
international law. The relevant provisions of UNCLOS provisions in Sarei are: (1) that "states take 'all
measures ... that are necessary to prevent, reduce and control pollution of the marine environment' that
involves 'hazards to human health, living resources and marine life through the introduction of
substances into the marine environment;" and (2) that states "adopt laws and regulations to prevent,
reduce, and control pollution of the marine environment caused by land-based sources." (151)
The court held that, if the plaintiffs' allegations are correct, UNCLOS is a viable cause of action.
Rio Tinto's actions that allegedly violate the provisions above include: "polluting a major bay dozens of
miles away, and the Pacific ocean as well"; depositing tailings in the Empress Augusta Bay causing
destruction of the fish as a food source; and leaving an estimated 8,000 hectares of Empress Augusta
Bay covered with "tailings to a copper concentration greater than 500ppm (parts per million)." (152)
Similar to the court's ruling in Flores, in Sarei, despite dismissal based on the political question
doctrine, the plaintiffs' success on the UNCLOS claim would have depended on environmental science
proving that the contamination of waters off Bougainville extended into UNCLOS "open sea" territory,
and also on a finding of state action. Because it is highly unlikely that the customary international law
created by UNCLOS has risen to one of the "handful of crimes," or a "jus cogens" violation that may
be violated by a private corporation, the plaintiffs would have had to show that Rio Tinto acted under
'color of law' in polluting Empress Bay to succeed on the merits.
Although it is possible that the sheer magnitude of the environmental harm caused by Rio Tinto
could have elevated the tort into the "handful of crimes" for which Rio Tinto could be held liable
without state action, it is more likely that state action would have been required. As discussed above,
the court in Aguinda I also seems to have left open the possibility that an environmental tort of a
gargantuan magnitude may lift the tort to a level actionable under the ATCA. (153)
Despite its dismissal, Sarei is important because it established that UNCLOS reflects customary
international law. (154) While this case fell victim of domestic political sabotage, not all cases will. In
the future, corporations may be held liable for environmental wrongs that violate UNCLOS.
Joshua Ridenour – SHINE, SC Page 18 of 25
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7. Six most prominent environmental claims under the ATCA
Dr. Natalie L. Bridgeman(JD, Program in Public Interest Law and Policy, UCLA School of Law;
Member, Human Rights Advocates; Member, National Lawyers Guild; Member, State Bar of
California; Trade, Environment, and Development Intern, Nautilus Institute; Law Clerk, NAFTA
Arbitrator; Editor-in-Chief, UCLA School of Law Journal of International Law and Foreign Affairs;
Independent Consulting Attorney, International Human Rights Council; Executive Director,
Accountability Counsel) “Human Rights Litigation Under the ATCA as a Proxy for Environmental
Claims” 2003 YALE HUMAN RIGHTS AND DEVELOPMENT LAW JOURNAL (Accessed via General
OneFile Research Database)

As seen above, the ATCA provides plaintiffs with the best chances of success in suits against
corporations for violations of the law of nations. However, compared to suits that allege human rights
violations, success has not yet been borne out in claims alleging environmental torts in violation of the
law of nations. Of the six main cases that have directly alleged environmental torts under the ATCA--
Amlon, Aguinda, Beanal, Bano, Flores and Sarei--all had the environmental claims dismissed--either
substantively or because of a procedural dismissal of all claims. In Amlon, the environmental claims
alleged under Principle 21 of the Stockholm Declaration and the Third Restatement of Foreign
Relations Law of the United States were dismissed for failure to establish a violation of the law of
nations. In Aguinda, Judge Broderick asserted that there may well have been a violation of the law of
nations for the environmental torts alleged, but in the end, the appellate court dismissed the claims on
the grounds of forum non conveniens. In Beanal, after some discussion of whether the conduct alleged
violated the environmental principles discussed by the plaintiffs, the court dismissed the action for
failure to allege violation of a universal, definable and obligatory international norm. Bano never
reached the issue due to the court's determination that the claims had been settled in India. In Flores, as
in Beanal, the court found that the environmental allegations were not violations of the law of nations.
In Sarei, Judge Morrow dismissed the plaintiffs' claim for a violation of the rights to life and health,
and would have sustained the plaintiffs' claim based on UNCLOS if the entire case had not been
dismissed based on the political question doctrine. If Sarei had reached a hearing on the merits, the
UNCLOS claim would have been the first instance of an environmental claim yielding liability under
the ATCA. (205)

8. Customary international law is the only basis for ATCA claims


Mark Hamblett(Reporter) “Alien Tort Claims Act Boundaries Clarified” Published in the Miami Daily
Business Review 2003 (Accessed via General OneFile Research Database)

The body of customary international law that can provide a basis for suit under the Alien Tort Claims
Act, Cabranes said, consists only of "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."
But if the practice or custom is not "universally" followed by states out of that obligation, he
said, "the practice cannot give rise to a rule of customary international law."

9. Right to life and health are too abstract to base a court claim on
Mark Hamblett(Reporter) “Alien Tort Claims Act Boundaries Clarified” Published in the Miami Daily
Business Review 2003 (Accessed via General OneFile Research Database)

The plaintiffs in Flores asked the 2nd Circuit to expand the scope of the law to include "shockingly
egregious" acts that are distinct from those torts that concern mere violations of domestic law.
Judge Cabranes and Judges Amalya Kearse and Dennis Jacobs declined to do so.
Joshua Ridenour – SHINE, SC Page 19 of 25
ATCA Reform - Neg
Allowing Alien Tort claims based on the "boundless and indeterminate" principles of "right to
life" or "right to health" would be a mistake, the court said.
"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," Cabranes said.

ATTITUDINAL BARRIER

Countries opposed to the Act – the twisted interpretation entails political backlash
National Center for Public Policy Research, November 2003. John Meredith.
http://www.nationalcenter.org/LB34.html

The personal injury lawyers are suing the American companies under the Alien Tort Claims Act,
a law enacted in 1789 to prevent pirates from disposing of booty in U.S. seaports. The law, which
allows foreign plaintiffs to litigate in U.S. courts, lay dormant for some 200 years, before the lawyers
managed to convince a judge that it might be used to sue American companies with investments in
South Africa. The South African government vigorously opposes that twisted interpretation. In effect,
asking the lawyers to cease and desist. Mandela is particularly upset by the lawyers' suggestion that
outsiders - U.S. courts thousands of miles away - can do a better job at remedying the wrongs of apartheid
than South Africa's own Truth and Reconciliation Commission, which considers claims and grants reparations to apartheid
victims. "South Africans are competent to deal with issues of reconciliation, reparation and transformation amongst
themselves without outside interference, instigation or instruction," Mandela said recently. "We have dealt with our political
transition in that manner and we are capable of dealing with other aspects of our transformation in similar ways." Penuell
Maduna, South Africa's Minister of Justice, warns that the U.S. lawsuits threaten foreign investment in
his country, and notes that "we talking to the very same companies named in the lawsuits about
investing in post-apartheid South Africa."
Joshua Ridenour – SHINE, SC Page 20 of 25
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DA#1 - CORPORATIONS HURT
Link: Aff expands claims against Multinational Corporations (MNCs)

Brink: Multinational Corporations wrongfully targeted by plaintiffs


Daniel T. Griswold(Director, Center of Trade Policy Studies, Cato Institute; M.Sc, Politics of the World
Economy, London School of Economics; ) “Abusive Use of the Alien Tort Claims Act” February 6,
2003 NATIONAL CENTER FOR POLICY ANALYSIS http://www.ncpa.org/sub/dpd/index.php?
Article_ID=5595

Through an obscure legal loophole, the United States is being turned into the world's catchall civil
claims court to the detriment of the U.S. economy and its interests abroad. The loophole is the Alien
Tort Claims Act passed in 1789.
The Act gives federal district courts sole jurisdiction over civil actions brought by non-U.S.
residents for torts, or wrongful acts, "committed in violation of the law of nations or a treaty of the
United States."
The law was originally intended to clarify jurisdiction in cases involving such matters as piracy
and the actions of diplomats -- and was never intended to be used against Americans engaged in
commerce abroad.
Yet in the last two decades, critics of global capitalism have turned the law against U.S.
corporations doing business in countries whose governments have been accused of human rights and
environmental abuses.
For example, in Doe et al. vs. Unocal Corp. et al., the American energy company stands accused
of benefiting from forced relocations and other human rights abuses by the government of Burma
during construction of a pipeline.
Since 1980, two dozen cases have been filed seeking damages from U.S.-based corporations
accused of being "vicariously liable" for the alleged actions of government agents in countries where
they operate.
Another group of suits targets more than 100 western multinational companies that operated in
South Africa during apartheid.
Critics say that misuse of the Alien Tort Claims Act constitutes bad law, bad economics and bad
foreign policy and Congress should pass legislation to close this loophole.

Impact: Innocent defendants pay a high price


Dr. Michael C Lynch(Partner, Kelley Drye Law Firm; BA, Political Science, University of Richmond;
JD, Fordham University School of Law; previously served for four years as a prosecutor in the Trial
Division of the Manhattan District Attorney’s Office; American Bar Association) and Dr. Lystra
Batchoo(Associate, Kelley Drye Law Firm; JD, Cum Laude, Brooklyn Law School; New York Bar
Association, American Bar Association) “Alien Tort Claims Act: A Once Dormant Statute Resurrects
With Implications and Potential Liability for Corporations” January 25, 2009 KELLEY DRYE LAW
FIRM http://www.kelleydrye.com/resource_center/global_litigation_usa/20090126/01

The growing popularity of using ATCA to subject companies to jurisdiction in the United States and
hold them liable for events occurring abroad has serious implications. Multinational corporations
should not ignore the obvious trend of foreign claimants bringing ATCA cases to force companies to
account for alleged human rights and other abuses. First, based on the most recent cases of Drummond
and Chevron, courts may be seeing these types of cases as more viable and, as a result, might allow
more cases to proceed to trial. Second, even though no case has resulted in liability against a corporate
Joshua Ridenour – SHINE, SC Page 21 of 25
ATCA Reform - Neg
defendant under ATCA, simply being named a defendant in such a suit has substantial negative effects
on a company's public image. For instance, in the case of Yahoo!, the company faced significant public
relations difficulties in defending itself against claims that it had assisted the Chinese government's
efforts in obtaining evidence sufficient to jail two dissidents. Therefore, even though a company might
not be legally liable, it might still suffer from what some consider moral liability. Finally, there are
potentially significant financial implications as well. In the case involving Chevron, although it was
eventually cleared of any wrongdoing, the company had to endure the cost of litigating a case that
stretched on for ten years. Even for those companies that choose to settle the claims, the price of
settlement can be substantial. While these settlements are generally undisclosed, some reports put
settlement figures of ATCA claims in the millions of dollars.
Joshua Ridenour – SHINE, SC Page 22 of 25
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DA #2 – COUNTRIES HURT

Link: Jeopardized foreign investments


National Center for Public Policy Research, November 2003. John Meredith.
http://www.nationalcenter.org/LB34.html

The fact that the litigation jeopardizes badly needed foreign investment in South Africa hasn't deterred
the already wealthy American lawyers who stand to walk away with millions of dollars if they are
successful. That would be a disaster for South Africa, a nation of 43 million with a 37 percent
unemployment rate and 50 percent of the population living under the poverty line. The situation is
made much worse by the country's incredible AIDS pandemic: 20.1 percent of the adult population
have the debilitating disease and 360,000 men, women and children die from it annually

Brink: No investment=industry shuts down, foreign companies leave


National Center for Public Policy Research, November 2003. John Meredith.
http://www.nationalcenter.org/LB34.html

The American personal injury lawyers - virtually all of them multi-millionaires - have a strategy that is
downright self-serving, to say the least. Their first tactic is to make outrageous charges against the
corporations, using the resulting negative publicity to bully them into signing a lucrative one-sided
settlements. Those businesses with backbone enough to seek "justice" encounter the lawyers' fallback
strategy, which is to proceed with trials before friendly, hand-picked judges who foster multi-million
dollar jury verdicts. In either case, poor black South Africans will get what amounts to peanuts - very small
compensation for participating in a lawsuit that leaves their stagnant economy with even fewer jobs as
foreign companies delay new investment and expansion plans, and, in some cases, shutter their factory
doors and leave.

Impact: Stagnate 3rd world economies/more disease


Daniel Griswold of the Cato Institute, 2003. He holds a bachelor's degree in journalism from the University of Wisconsin at
Madison and a diploma in economics and a master's degree in the Politics of the World Economy from the London School of Economics. Daniel Griswold
is director of the Center for Trade Policy Studies at the Cato Institute in Washington, D.C. “Abuse of 18th Century Law Threatens U.S. Economic and
Security Interests”. http://www.cato.org/pub_display.php?pub_id=2965

The unjust wielding of the ATCA threatens to damage the U.S. economy and the often-underdeveloped
economies of the host countries. If those cases move forward and ultimately result in damages, it could
put a chill on profitable foreign investment, jeopardizing jobs and investment capital in the United
States while retarding development in poor countries. Hundreds of millions of poor people around the
world will find it more difficult to escape poverty. (H/H)
Joshua Ridenour – SHINE, SC Page 23 of 25
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DA #3 – SOFT POWER
Internal Link: ATCA lawsuits hinder foreign policy interest
National Center for Public Policy Research, November 2003. John Meredith.
http://www.nationalcenter.org/LB34.html

The Bush Administration agrees and has filed a brief seeking to limit ATCA lawsuits in U.S. courts on the
grounds they pose a direct threat to national security and foreign policy interests and could hinder
America's war against terrorism. To do less is to embrace a paternalistic theory that smacks more than
faintly of colonialism and racism. It's time to end the lawyers' quest for jackpot justice at the expense of U.S. foreign
policy interests and South Africa's desperate need to revive a decaying economy.

Link: Foreign policy initiatives hindered, imperiled counter-terrorism efforts


Daniel Griswold of the Cato Institute, 2003. He holds a bachelor's degree in journalism from the University of Wisconsin at
Madison and a diploma in economics and a master's degree in the Politics of the World Economy from the London School of Economics. Daniel Griswold
is director of the Center for Trade Policy Studies at the Cato Institute in Washington, D.C. “Abuse of 18th Century Law Threatens U.S. Economic and
Security Interests”. http://www.cato.org/pub_display.php?pub_id=2965

Abuse of the ATCA is complicating U.S. foreign policy at a time when the United States needs to win
friends and influence nations in the war against terrorism. Suits filed under the ATCA breed resentment
abroad that the U.S. legal system is attempting to interfere in the internal affairs of other nations. In one
case involving Indonesia and Exxon Mobil Corporation, the U.S. State Department warned in a July
2002 friend-of-the-court letter that, "U.S. counter-terrorism initiatives could be imperiled in numerous
ways if Indonesia and its officials curtailed cooperation in response to perceived disrespect for its
sovereign interests." American interest would be further jeopardized if the lawsuits lead to worsening
economic conditions and instability in countries the United States is trying to cultivate as allies. As the
State Department noted in the Indonesia case, "increasing opportunities for U.S. business abroad is an
important aspect of U.S. foreign policy." (H/H)

Impact: Loss of soft power

1. Without soft power the US loses leverage in international affairs


Joseph S. Nye (Ph.D. in political science from Harvard University. The 2008 TRIP survey of 1700
international relations scholars ranked him as the sixth most influential scholar of the past twenty years, and the most
influential on American foreign policy. Received his bachelor's degree summa cum laude from Princeton in 1958, did
postgraduate work at Oxford on a Rhodes Scholarship and earned his Ph.D. He is the University Distinguished Service
Professor of the John F. Kennedy School of Government at Harvard University. He was Deputy to the Under Secretary of
State for Security Assistance, Science and Technology and chaired the National Security Council Group on
Nonproliferation of Nuclear Weapons. Nye also served as Assistant Secretary of Defense for International Security Affairs
in the Clinton Administration. In recognition of his service, he received the highest Department of State commendation, the
Distinguished Honor Award. In 1993 and 1994, he was chairman of the National Intelligence Council, which coordinates
intelligence estimates for the President. He was awarded the Intelligence Community’s Distinguished Service Medal. In
1994 and 1995, he served as Assistant Secretary of Defense for International Security Affairs, where he also won the
Distinguished Service Medal with an Oak Leaf Cluster.), May 2004 "The Decline of America's Soft Power," published in
Foreign Affairs Magazine, http://www.foreignaffairs.org/20040501facomment83303/joseph-s-nye-jr/the-decline-of-
america-s-soft-power.html (JES)

"Soft power, therefore, is not just a matter of ephemeral popularity; it is a means of obtaining outcomes
the United States wants. When Washington discounts the importance of its attractiveness abroad, it
pays a steep price. When the United States becomes so unpopular that being pro-American is a kiss of
death in other countries' domestic politics, foreign political leaders are unlikely to make helpful
Joshua Ridenour – SHINE, SC Page 24 of 25
ATCA Reform - Neg
concessions (witness the defiance of Chile, Mexico, and Turkey in March 2003). And when U.S. policies lose their legitimacy
in the eyes of others, distrust grows, reducing U.S. leverage in international affairs."

2. Soft Power is key to a lot of issues.


Joshua Kurlantzick (Visiting scholar in the Carnegie Endowment for International Peace and a fellow at the USC
School of Public Diplomacy and the Pacific Council on International Policy; previously foreign editor at The New
Republic), December 2005 "The Decline of American Soft Power", Published in Current History, [Vol. 104, Issue 686;
pg. 419] (JES)

"A broad decline in soft power has many practical implications. These include the drain in foreign
talent coming to the United States, the potential backlash against American companies, the growing
attractiveness of China and Europe, and the possibility that anti-US sentiment will make it easier for
terrorist groups to recruit. In addition, with a decline in soft power, Washington is simply less able to
persuade others. In the run-up to the Iraq War, the Bush administration could not convince Turkey, a longtime US ally, to play a major staging role,
in part because America's image in Turkey was so poor. During the war itself, the United States has failed to obtain significant participation from all but a
handful of major nations, again in part because of America's negative image in countries ranging from India to Germany. In attempts to
persuade North Korea to abandon its nuclear weapons, Washington has had to allow China to play a
central role, partly because few Asian states view the United States as a neutral, legitimate broker in the
talks. Instead, Washington must increasingly resort to the other option Nye discusses-force, or the threat of force. With foreign governments and publics
suspicious of American policy, the White House has been unable to lead a multinational effort to halt Iran's nuclear program, and instead has had to resort
to threatening sanctions at the United Nations or even the possibility of strikes against Iran. With
America's image declining in nations
like Thailand and Pakistan, it is harder for leaders in these countries to openly embrace
counterterrorism cooperation with the United States, so Washington resorts to quiet arm-twisting and blandishments to obtain
counterterror concessions. Force is not a long-term solution. Newer, nontraditional security threats such as disease, human
trafficking, and drug trafficking can only be managed through forms of multilateral cooperation that
depend on America's ability to persuade other nations. Terrorism itself cannot be defeated by force alone, a fact that even the
White House recognizes. The 2002 National security Strategy emphasizes that winning the war on terror requires the United States to lead a battle of ideas
against the ideological roots of terrorism, in addition to rooting out and destroying individual militant cells."
Joshua Ridenour – SHINE, SC Page 25 of 25
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DA #4 – RULE OF LAW
Link: Aff. extends right of action for environmental damages under ATCA

Internal Link: Current interpretations twist the original nature/intent of the law
Daniel Griswold of the Cato Institute, 2003. He holds a bachelor's degree in journalism from the University of Wisconsin at
Madison and a diploma in economics and a master's degree in the Politics of the World Economy from the London School of Economics. Daniel Griswold
is director of the Center for Trade Policy Studies at the Cato Institute in Washington, D.C. “Abuse of 18th Century Law Threatens U.S. Economic and
Security Interests”. http://www.cato.org/pub_display.php?pub_id=2965
The loophole is the Alien
Tort Claims Act (ATCA), passed by the first Congress in 1789. The act gives federal
district courts sole jurisdiction over civil actions brought by non-U.S. residents for torts, or wrongful
acts, "committed in violation of the law of nations or a treaty of the United States." The law was
originally intended merely to clarify jurisdiction in cases involving such matters as piracy and the
actions of diplomats. It was never intended to be used against Americans engaged in commerce abroad.
But in the last two decades, critics of global capitalism have turned the law against U.S. corporations
doing business in countries whose governments have been accused of human rights and environmental
abuses. (H/H)

Impact: Rule of Law is key to stable society


Public Affairs Journal, 2008. (Lauren Zeitler is currently a junior at William Smith College. She is a double major in Political Science and
Latin American Studies, in addition to completing an honors project regarding the “latinization” of the U.S. labor force.)
http://www.publicaffairsjournal.com/?q=node/33
the Rule of Law, requires that liberty and freedom be equally applied to secure the
This framework, called
freedom of mobility .The Rule of Law protects the relationship between economic and political
freedoms. Under the Rule, private property, competition and personal freedoms are equally enforced so
that every individual is subject to equal market forces. (H/H)

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