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United States (U.S.) Court of Appeals for the Second Circuit: Flores et al. v. Southern Peru Copper Corporation

Published online by Cambridge University Press:  18 May 2017

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Judicial and Similar Proceedings
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International Legal Materials , Volume 43 , Issue 1 , January 2004 , pp. 196 - 220
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Copyright © American Society of International Law 2004

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References

Endnotes

1 This provision has also been referred to as the “Alien Tort Act,” see, e.g., Kadic v. Karadzic, 70 F.3d 232, 238 (2d Cir. 1995), and the “Alien Tort Statute,” see, e.g., Filartiga v. Pena-Irala, 630 F.2d 876, 880 (2d Cir. 1980).

2 In the context of the ATCA, we have consistently used the term “customary international law” as a synonym for the term the “law of nations.” See generally Kadic v . Karadzic, 70 F.3d 232, 239 (2d Cir. 1995); Filartiga v. Pena-Irala, 630 F.2d 876, 884 (2d Cir1980). The term “customary international law “ echoes the earlier phrase sometimes used to describe the law of nations, “the customary law of nations.” See, e.g., The Estrella, 17 U.S. (4 Wheat.) 298, 307-08 (1819) (referring to non-treaty-based law of nations as the “the customary law of nations“).

3 On appeal, plaintiffs only pursue their claims that defendant's conduct violates customary international law rights to life a nd health; they no longer base their argument on a right to “sustainable development.“

4 For example, in 1991, SPCC entered into an agreement with the government of Peru that, in conjunction with a modernization and expansion of its facilities, it would spend $135 million for several environmental projects to be overseen by the MEM. The MEM approved the design and spending on these projects, which were completed in 1996.

5 Record evidence, not contested by plaintiffs, demonstrates that SPCC has been sued in Peru for damages resulting from the environmental impact of its operations.

6 Section 602(2) of the Restatement (Third) provides:Where pollution originating in a state has caused significant injury to persons outside that state, or has created a significant risk of such injury, 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.

7 No appeal was taken from that decision.

8 The plaintiff in Beanal also raised claims of genocide and cultural genocide. Id. at 166. We omit discussion of these claims because they are not at issue in the instant case.

9 The District Court conditioned its dismissal on the ground of forum non conveniens on the defendant's stipulation to: (1)defend [plaintiffs’] claims on the merits in any action plaintiffs may bring in a Peruvian court and (2)waive any statute or period of limitations that would otherwise apply under Peruvian law to any action brought by plaintiffs in a Peruvian court within two years after the date of this Court's order of dismissal or the resolution of any and all appeals from that order, whichever occurs later.Flores, 253 F. Supp. 2d at 544.

10 The Judiciary Act of 1789 reads, in relevant part: “[T]he district courts … shall also have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.” Judiciary Act of 1789, ch. 20, § 9, 1 Stat. 73, 76-77. The ATCA has been amended several times to reflect structural and procedural modifications to U.S. courts but has not been modified substantively.

11 The Senate debates on the Judiciary Act of 1789 were not recorded and the House debates did not mention the ATCA provision. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 812 (D.C . Cir. 1 984) (Bork, J., concurring).

12 See Sweeney, Joseph Modeste, A Tort Only In Violation of the Law of Nations, 18 Hastings Int'l & Comp. L. Rev. 445, 451 (1995)Google Scholar (arguing that “[t]he word ‘tort,'… referred to wrongs under the law of prize.“).

13 Indeed, some scholars have suggested that concerns over several attacks on foreign ambassadors in the early United States were the im mediate impetus for passage of the Act. See Dodge, William S., The Historical Origins of the Alien Tort Statute: A Response to the “Originalists,” 19 Hastings Int'l ' Comp. L. Rev. 221, 232–33 (1996);Google Scholar see also Casto, William R., The Federal Courts’ Protective Jurisdiction Over Torts Committed in Violation of the Law of Nations, 18 Conn. L. Rev. 467, 495 (1986).Google Scholar The incidents in question are discussed in Respublica v. De Longchamps, 1 U.S. (1 Dall.) 111 (1784), and Report of John Jay, Secretary of Foreign Affairs on Complaint of Minister of United Netherlands, 34 J. Cont. Cong. 109, 111 (1788). Only certain of the United States at that time provided a remedy for offenses against foreign diplomatic personnel, raising the specter that an offense against foreign diplomatic personnel in a State that did not provide a remedy could leave the United States open to a reprisal. See Letter from Edmund Randolph, Governor of Virginia, to the Honorable Speaker of the House of Delegates (Oct. 10, 1787) (stating that “[i]f the rights of an ambassador be invaded by any citizen it is only in a few States that any laws exist to punish the offender“).

14 See Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 813 (Bork, J., concurring) (“What kinds of alien tort actions, then, might the Congress of 1789 have meant to bring into federal courts? According to Blackstone, a writer certainly familiar to colonial lawyers, 'the principal offences against the law of nations, animadverted on as such by the municipal laws of England, [were] of three kinds; 1. Violation of [the law of prize]; 2. Infringement of the rights of embassadors; and 3. Piracy.'” (internal citation omitted)).

15 See Dodge, William S., The Historical Origins of the Alien Tort Statute: A Response to the “ Originalists,” 19 Hastings Int'l ' Comp. L. Rev. 221, 237 (1996)Google Scholar (arguing that “the original intent of the Alien Tort Clause was to provide the broad civil remedy for violations of the law of nations that the Continental Congress had sought since 1781…[and] that were already cognizable at common law“); see also Tel-Oren, 726 F.2d at 783 (Edwards, /., concurring) (stating that “[u]nder the law of nations, states are obliged to make civil courts of justice accessible for claims of foreign subjects against individuals within the state's territory“); Filartiga, 630 F.2d at 881 (” [I]t is clear that courts must interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today.“).

16 In the German legend, Lohengrin appears as if out of nowhere to rescue a maiden and break a curse, but after her inquiry into his cryptic origins, he vanishes again. See Robert Jaffray, The Two Knights of the Swan: Lohengrin and Helyas, 11 (1910).

17 Filartiga did not identify the ATCA as the source of such rights; instead, it stated that “it is sufficient… to construe the [ATCA] simply as opening the federal courts for adjudication of the rights already recognized by international law.” 630 F.2d at 887.

18 Customary international law rules proscribing crimes against humanity, including war crimes and genocide, have been enforceable against individuals since World War II. See Brigadier General Telford Taylor, U.S.A., Chief of Counsel for War Crimes, Final Report to the Secretary of the Army on the Nuernberg War Crimes Trials Under Control Council Law No. 10, at 109 (William S. Hein&Co.,Inc. 19 97) (Aug. 15,1949) (“[T]he major legal significance of the [Nuremberg].. .judgments, lies … in those portions of the judgments dealing with the area of personal responsibility for international law crimes.“); 1 Oppenheim's International Law 505 (Sir Robert Jennings & Sir Arthur Watts eds., 9th ed. 1996) (discussing the principle of individual responsibility for war crimes and crimes against humanity); see also Meron, Theodor, International Criminalization of Internal Atrocities, 89 A m. J. Int'l L. 5 54, 572 (1995)Google Scholar (citing Hersch Lauterpacht, The Law of Nations and the Punishment of War Crimes, 2 Brit. Y.B. Int'l L. 58, 65 (1944), as first proposing universal jurisdiction over individual war criminals). For example, the Charter of the International Military Tribunal, which authorized the punishment of the major war criminals of the European Axis, provided that “there shall be individual responsibility” for “war crimes” and for “crimes against humanity.” Charter of the International Military Tribunal in Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 58 Stat. 1544, 82 U.N.T.S. 280, 288.

19 Among legal commentators, Filartiga's interpretation of the ATCA has attracted both celebrants and critics. Compare, e.g., Hongju Koh, Harold, Transnational Public Law Litigation, 100 Yale L.J. 2347, 2366 (1991)Google Scholar (celebrant), and Burley, Anne-Marie, The Alien Tort Statute and the Judiciary Act of 1789: A Badge of Honor, 83 Am. J. Int'l L. 461 (1989)CrossRefGoogle Scholar (celebrant), with Bradley, Curtis A. ' Goldsmith, Jack L., Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815, 833–34 (1997)CrossRefGoogle Scholar (critics), and Casto, William R., The Federal Courts’ Protective Jurisdiction Over Torts Committed in Violation of the Law of Nations, 18 Conn. L. Rev. 467, 479–80 (1986)Google Scholar (critic).

20 By creating a private right of action for victims of official torture, the TVPA “executed” in part the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 U.N.T.S. 85, G.A. Res. 39/46,39 (1984), 231.L.M. 1027, which the Senate ratified October 27, 1990, S. Treaty Doc. No. 100-20,136 Cong. Rec. D1442 (1990). The United States’ obligations under the CAT also are executed in part in the Foreign Affairs Reform and Restructuring Act of 1988 (“Farra“), Pub. L. No. 105-277, div. G, Title XXII, § 2242, 112 Stat. 2681-822 (Oct. 21, 1998) (codified as Note to 8 U .S.C. § 1231), which protects aliens from deportation to a country where they are more likely than not to be tortured. See Wang v. Ashcroft, 320 F.3d 130, 133 (2d Cir. 2003). For a discussion of the diffe rence between signing and ratifying a treaty, see Discussion, se ction III.B.l, post. On the significance of execution of a treaty, see note 34, post.

21 The language of the TVPA imposes civil liability on any “individual who, under actual or apparent authority, or color of law, of any foreign nation . .. subjects an individual to torture … or … to extrajudicial killing.” TVPA § 2(a). In order to bring a claim under the TVPA, however, a claimant must have “exhausted [any ] adequate and available remedies in the place in which the conduct giving rise to the claim occurred.” Id. § 2(b); see 28 U.S.C. § 1350 note.

22 “Custom is the oldest and the original source of international law as well as of law in general,” the substance of which “is to be found in the practice of states.” 1 Oppenheim's International Law 25-26 (Sir Robert Jennings ' Sir Arthur Watts, eds., 9th ed. 1996). The practice of states, in turn, “embraces not only their external conduct with each other, but is also evidenced by such internal matters as their domestic legislation, judicial decisions, diplomatic despatches, internal government memoranda, and ministerial statements in Parliaments and elsewhere.” Id. at 26.

23 The principle stated by Judge Friendly in Vencap and Judge Kaufman in Filartiga that customary international law addresses only matters of mutual concern among nations, rather than the several domestic concerns of States, finds early support in the Supreme Court's opinion in The Malek Adhel, 43 U.S. (2 How .) 210 (1844). In that case, Justice Story elaborated on why piracy, which he had earlier described as “only a sea term for robbery” in United States v. Smith, 18 U.S. (5 Wheat.) 153, 161-62 (1820) (citationomitted), is proscribed by the law of nations, while robbery is not. He explained: “A pirate is deemed, and properly deemed, hostis humani generis. But why is he so deemed? Because he commits hostilities upon the subjects and property of any or all nations, without any regard to right or duty, or any pretence of public authority.” 43 U.S. (2 How.) at 232 (second emphasis added).

24 The International Court of Justice (“ICJ“) is a multinational body charged with discerning and applying international law. Under the Charter of the United Nations, “[a]ll Members of the United Nations [including the United States] are ipso facto parties to the Statute of the International Court of Justice.” Charter of the United Nations, 59 Stat. 1033, 1051, T.S. No. 993 (1945), Art. 93 (effective Oct. 24, 1945).The United States Senate ratified the Charter of the United Nations on July 28, 1945, 91 Cong. Rec. 8185, 8190 (1945), causing the United States to be a party to the Statute of the ICJ. The Senate conditioned its adoption of the Statute of the ICJ with the famous Connally Reservation, that permits the United States to opt out of the jurisdiction of the ICJ over a particular dispute if the State determines that the dispute is domestic in nature and that its domestic jurisdiction applies. See Acceptance of Compulsory-Jurisdiction of the International Court of Justice, 92 Cong. Rec. 10,694-97 (1946); Dep't State Bull., Sept. 1946, at 452-53. Moreover, although the Charter of the United Nations has been ratified by the United States, it is not self-executing. See Seetransport Wiking Trader Schiffarhtsgesellschaft MB H ' Co., Kommanditgesellschaft v. N avimpex Centrala Navala, 989 F.2d 572, 578 (2d Cir. 1993); Filartiga, 630 F.2d at 881-82 ' n.9; Dreyfus v. Von Finck, 534 F.2d 24, 30 (2d Cir. 1976); see also Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 937-38 (D.C . Cir. 1 988); Frolova v. U.S.S.R., 761 F.2d 370, 374 ' n.5 (7th Cir. 1 985) (collecting cases). See generally note 34, post (discussing self-executing treaties).

25 Article 59 provides in full: “The decision of the Court has no binding force except between the parties and in respect of that particular case.” Id. art. 59.

26 The ICJ Statute's emphasis on the works of “publicists” — more commonly known as scholars or jurists — as a subsidiary or secondary source of customary international law suffers from an anachronism, as the work of international law scholars during the nineteenth and early twentieth century differed considerably from that of contemporary scholars. In “the nineteenth century positivisl heyday of international law,” international law scholars “did the hard work of collecting international practices.” Remarks of Jack L. Goldsmith, Panel Discussion, Scholars in the Construction and Critique of International Law, 94 Am. Soc'y Int'l L. Proc. 317. 318 (2000). The practice of relying on international law scholars for summaries and evidence of customary international law — that is, as secondary or “subsidiary” sources of international law — makes less sense today because much contemporary international law scholarship is “characterized by normative rather than positive argument, and by idealism and advocacy.” Id. at 319.The earlier era of scholarly works, consisting in substantial measure of compilations, explications, and digests of primary international legal materials, is exemplified by several series of works descriptive of the international legal practices of the United States, including A Digest of the International Law of the United States (Francis Wharton ed., 1886-87) (three volumes) (a U.S. Government compilation of various official United States documents pertaining to international law), A Digest of International Law (John Bassett Moore ed., 1906) (eight volumes) (same), the Digest of International Law (Green Haywood Hackworth ed., 1940-44) (eight volumes) (same), and the Digest of International Law (Marjorie M. Whitem an ed., 1963-73) (fifteen volumes) (same). See also Annual Digest and Reports of Public International Law Cases (Hersch Lauterpacht et al. ed., 1919-49) (an analogous compilation of British materials published every one to four years); Law Officers’ Opinions to the Foreign Office 1793-1860 (Clive Parry ed., 1970-73) (ninety-seven volumes) (similar). Contemporary international law scholarship, largely theoretical and normative, is represented by such works as Ratner, Steven R., Corporations and Human Rights: A Theory of Legal Responsibility, 111 Yale LJ. 443 (2001)CrossRefGoogle Scholar, and Goldsmith, Jack L. and Posner, Eric A., A Theory of Customary International Law, 66 U. Chi. L. R ev. 1113 (1999).CrossRefGoogle ScholarWithout taking any view on the merits of different forms of scholarship, and recognizing the potential of theoretical work to advance scholarship, we note that compilations and digests are of greater value in providing “trustworthy evidence of what the law really is,” whereas expressly theoretical or normative works m ake their contribution by setting forth the “speculations of … authors concerning what the law ought to be.” The Paquete Habana, 175 U .S. 677, 700 (1900) (emphases added).

27 Plaintiffs raised this argument before the District Court, see Flores, 253 F. Supp. 2d at 522, but disavowed it in their appellate brief, see Pis.’ Br. at 32-33. As such, the issue is not properly before us, regardless of the fact that they once again raised this issue at oral argument by asserting that to allege a violation of customary international law, “one must allege intentional and egregious behavior causing long-term, widespread and severe harm.” See, e.g., Warren v. Garvin, 219 F.3d 111, 113 n.2 (2d Cir. 2000) (declining to consider an issue addressed only at oral argument because “‘[i]ssues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.'” (quoting Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir. 1998))). For the sake of bringing clarity to this difficult area of law, however, we consider plaintiffs ‘ argument notwithstanding their waiver of the claim.

28 As discussed above, customary international law addresses those matters that are of “mutual” concern to States in their dealings with each other, and not matters that are of “several” concern to each state independently. See Filartiga, 630 F.2d at 888; Vencap, 519 F.2d at 1015; see also Discussion, section II.B.l, ante.

29 Because plaintiffs do not allege that defendants’ conduct had an effect outside the borders of Peru, we need not consider the customary international law status of rrarc.snational pollution. See note 6, ante (quoting the provision of the Restatement (Third) addressing transnational pollution).

30 Although courts are generally limited to examining the sufficiency of the pleadings on a motion to dismiss, “on a challeng[e] [to] the district court's subject matter jurisdiction, the court may resolve disputed jurisdictional fact issues by reference to evidence outside the pleadings.” File tech S.A. v. France Telecom S.A., 157 F.3d 922,932 (2d Cir. 1998) (internal quotation marks and citation omitted). While the determination of customary international law is not strictly factual, courts must resort to submissions outside the pleadings in order to ascertain the customs and practices of states. Thus, where a motion to dismiss for lack of subject matter jurisdiction requires a determination of customary international law, courts are not limited to examining the sufficiency of the pleadings.

31 Although the ATCA provides a cause of action to aliens for torts “committed in violation of … a treaty of the United States,” 28 U.S.C. § 1350, as well as for violations of the law of nations, plaintiffs do not contend that defendant's actions violate a United States treaty. Instead, they rely on various multilateral treaties, conventions, and covenants as evidence of the “law of nations,” or customary international law.

32 In the United States, ratification occurs when “two thirds of the Senators present concur” in ratifying a signed treaty presented by the Executive. U.S. Const, art. II, § 2, cl. 2. Thus, the United States becomes a “party” to a treaty — that is, becomes contractually bound to obey its terms — only after a treaty has been ratified by the Senate.

33 As we have previously observed:While it is not possible to claim that the practice or policies of any one country, including the United States, has such authority that the contours of customary international law may be determined by reference only to that country, it is highly unlikely that a purported principle of customary international law in direct conflict with the recognized practices and customs of the United States and/or other prominent players in the community of States could be deemed to qualify as a bonaflde customary international law principle.United States v. Yousef, 327 F.3d 56, 92 n.25 (2d Cir. 2003).

34 Self-executing treaties are those that “immediate[ly] creat[e] rights and du ties of private individuals which are enforceable and [are] to be enforced by domestic tribunals.” Stefan A. Riesenfeld, Comment: The Doctrine of Self-Executing Treaties and U.S. v. Postal: Win at Any Price?, 74 Am. J. Int'l L. 892, 896-97 (1980). Non-self-executing treaties “require implementing action by the political branches of government or… are otherwise unsuitable for judicial application.” Damrosch, Lori Fisler, The Role of the United States Senate Concerning “Self-Executing” and “ Non-Self-Executing” Treaties, 67 Chi.-Kent L. Rev. 515, 516 (1991)Google Scholar; see also Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 252 (1984); Wang v. Ashcroft, 320 F.3d 130, 140 (2003); Dreyfus v. Von Finck, 534 F.2d 24, 30 (2d C ir. 1976).

35 The United States Senate ratified the ICCPR on June 8, 1992. See International Covenant on Civil and Political Rights, 102d Cong., 13 8 Cong. Rec. S4781, S4784 (ratified Apr. 2, 19 92); I United Nations, Multilateral Treaties Deposited with the Secretary General 165 (2003). However, the treaty was ratified with numerous reservations conforming the United States’ obligations under the ICCPR to the requirements of the Constitution, and with the declaration that the ICCPR is not self-executing. Id. Accordingly this treaty does not create a private cause of action in United States courts. Id.; see also S. Exec. Rep. No. 102-23, at 9, 19, 23 (1992), 138 Cong. Rec. S4096; Poindexter v. Nash, 333 F.3d 372, 379 (2d Cir. 2003); Romeu v. Cohen, 265 F.3d 118, 136 n.8 (2d Cir. 2001); Al Odah v. United States, 321 F.3d 1134, 1147 (D.C. Cir. 2003) (Randolph, j., concurring).

36 General Assembly documents cited by plaintiffs in their briefs include the Universal Declaration of Human Rights, G.A. Res. 217A(III), U.N. GAOR, 3d Sess., U.N . Doc. A/810, at 71 (1948) arts. 3 (right to life), 25 (right to health), and the World Charter for Nature, G.A. Res. 37/7, U.N. GAOR, 37th Sess., Supp. No. 51, at 17, U.N. Doc. A/37/51 (1982).

37 The pre-eminent authority on the law of international institutions, Professor Sir Derek Bowett of Cambridge University, writing in the late 1950s, made precisely the same point:The Assembly is a deliberative body, an organ for discussion in the widest sense. It has, of course, power to investigate facts, to make recommendations, but it has no power to bind the members; it cannot take binding decisions as the Security Council can. This means, then, that any analogy with the legislature of a state is very misleading, for the Assembly's functions cannot be legislative in the true sense. The only way in which its recommendations can become binding upon members is for the members to agree in advance to treat those recommendations as binding, but the Assembly's recommendations themselves have no legally binding force. D.W. Bowett, The General Assembly, in The United Nations: The First Ten Years 3, 9-10 (B.A. Wortley ed., 1957); see also D.W. Bowett, The Law of International Institutions 41 (3d ed. 1975) (cautioning that “any attempt to draw analogies with a national assembly, parliament or legislature, is apt to be dangerous” and recognizing that General Assembly resolutions may “become evidence of international law” only “indirectly” and only if they “embody a consensus of opinion about what the law is“); Robert C. Hilderbrand, Dumbarton Oaks: The Origins of the United Nations and the Search for Postwar Security 108-10 (1990) (discussing the role of the General Assembly vis à vis the Security Council); Schwebel, Stephen M., The Effect of Resolutions of the U.N. General Assembly on Customary International Law, 73 Am. Soc'y Int'l L. Proc. 301, 301 (1979)Google Scholar (noting the observation of Secretary of State Cyrus R. Vance that “while the one-state, one-vote procedure for expressing the sense of the General Assembly is from many points of view unsatisfactory, the incorporation of this principle in the Charter was balanced by giving the Assembly only recommendatory powers” (quoting The Secretary's Report to the President on Reform and Restructuring of the U .N. System, Dep't St. Pub. No. 8940 (June 1978))). See generally 8-10 Documents of the United Nations Conference on International Organization, San Francisco, 1945 (United Nations Information Organizations ed., 1945) (collecting documents relating to creation and function of the General Assembly).

38 The District of Columbia Circuit has described the Universal Declaration as “merely a non-binding resolution.” Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 816 n.17 (D.C. Cir. 1987). Moreover, at the time of its adoption in 1948, it was the explicit position of the United States that the Declaration “is not a treaty … [or] an international agreement” and that “[i]t is not and does not purport to be a statement of law or of legal obligation.” 19 Dep't State Bull. 751 (1948) (remarks of Eleanor Roosevelt, then a U.S. delegate to the General Assembly). These statements are consistent with Filartiga, which recognized that the Universal Declaration constitutes evidence of customary international law only insofar as States have universally abided by its principles out of a sense of legal obligation and mutual concern.

39 Although the Filartiga Court relied in large part on wfranational laws and policies, it expressly concluded that official torture is a matter of mutual rather than several concern among States. Filartiga, 630 F.2d at 888-89.

40 Even if the General Assembly resolutions cited by plaintiffs, see note 36, ante, did describe the actual customs and practices of state s, they would fail for the reasons set forth in Discussion, section III.A, ante — namely, because the proclamations of rights in those resolutions are insufficiently clear and definite to constitute rules of customary international law.

41 Even if the Rio Declaration did create enforceable legal obligations, it would not support plaintiffs’ claims. First, as discussed above, the principles set forth in the Rio Declaration are insufficiently definite to constitute rules of customary international law. See Discussion, section III.A, ante. Furthermore, as the District Court correctly noted, Principle 2 of the Declaration may actually undermine plaintiffs’ assertion that the Declaration establishes a right to life and a right to health. See Flores, 253 F. Supp. 2d at 521. Principle 2 provides: States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the 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. Interpreting this text, the District Court correctly observed that the Rio Declaration recognizes the “sovereign right” of nations such as Peru to control the level of environmental exploitation within their borders. Id. at 522; accord Beanal, 197 F.3d at 167 n.6 (“Although Beanal cites the Rio Declaration to support his claims of environmental torts and abuses under international law, nonetheless, the express language of the declaration appears to cut against Beanal's claims.“).

42 One of plaintiffs’ experts also submitted a substantially similar affidavit in Sarei v. Rio Tinto PLC, 221 F. Supp. 2d 1116 (CD. Cal. 2002), appeal pending, Nos. 02-56256,02-56390 (9th Cir. oral arg. Sept. 8, 2003), a case brought by residents of Papua New Guinea against a mining corporation. The Sarei district court, like the District Court in the instant case, found the affidavit to rely on non- authoritative documents and to espouse a right to life and health too general to be recognized as a rule, norm, or custom of customary international law. Id. at 1156-59.

43 Plaintiffs have submitted a 2,248-page, four-volume appendix that consists primarily of documents intended to establish that intranational pollution violates customary international law. In this opinion, we have addressed only those documents that plaintiffs mention in their briefs. We have reviewed the remaining materials that they have submitted and agree with their assessment that those documents are insufficiently relevant or weighty to warrant discussion in the circumstances presented here. See, e.g. Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1995 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, 6th Sess., U.N. Doc. A/CONF.164/37 (1995), 341.L.M. 1542; Agreement Establishing the European Bank for Reconstruction and Development, Paris, France, May 29, 1990, 29 I.L.M. 1077; Convention on the Elimination of All Forms of Discrimination Against Women, G.A. Res. 34/180, U.N. GAOR, 34th Sess., Supp. No. 46, at 193, U.N. Doc. A/34/46 (1979), 19 I.L.M. 33 (1980).