Introduction (2006)

 

The following Note was written during my time in law school and was published, under my legal name, in the Wisconsin International Law Journal, vol 11, no. 2 (spring 1993). It seems not to have gone completely unnoticed; a few years ago someone wrote requesting permission to reprint part of it in an anthology, though I don't know if anything came of that.

In writing it, I was attempting to comply with the standard requirements of legal writing and reasoning, and hope not to have deviated too much from same.  Nearing the conclusion, however, I found myself recurring to the global vision, derived from Celan's "Meridian" speech (see the article "Celan's Planetary Vision" on the "Homage to Paul Celan" page), that had also been reflected in The Consciousness of Earth.

The version below, due to technical difficulties, has lost most of the formatting which was painstakingly applied per the then latest handbook; and the Notes which appear at the end have lost their reference numbers in the text.  However, I believe the ideas will still be clear, and anyone in search of scholarly accuracy can either look up the print version or obtain the WordPerfect file by emailing me at derondareview@att.net.

                                                                                                                                                    -- Esther Cameron

 

 

Beatrice A. Cameron

GLOBAL ASPIRATION, LOCAL ADJUDICATION:

A CONTEXT FOR THE EXTRATERRITORIAL APPLICATION OF ENVIRONMENTAL

LAW

 

The earth, that yielded us at last the metals,

the fuels, to thrust ourselves beyond its grip,

to where it now appears to us, so small,

as if it fit a thumb and finger's compass . . .

and at the same time here we are, caught up,

as ever, in the illimitable web

woven by life, sustaining us and all,

and if we tear this from the earth, we perish.

-- The Consciousness of Earth

                                Think globally, act locally.

                                                                        -- Green Party slogan

TABLE OF CONTENTS

 

I. Introduction

II. Alternatives

III. The Framework of International Jurisdictional Principles

IV. Extraterritoriality in U.S. Courts

A. The Evolution of Extraterritoriality in Anti-Trust and Securities Litigation

B. Extraterritoriality in Labor Cases

C. Extraterritoriality in Environmental Cases

D. Substantive International Law As a Basis for Decisions

V. The Codemaking Process and its Discontents

A. Environmental Law in Restatement (Third) of Foreign Relations

B. The OECD Guidelines and the UN Draft Code

C. The Goal of an "Earth Charter"

VI. The "Ombudsmen for Future Generations": Bridge across the Information Gap?

VII. Summary and Conclusion

 

 

I. Introduction

 

In recent decades, a perception that human technology and demands pose a threat to the global

ecosystem has prompted a reexamination of basic values in various fields. In the field of law, this

situation has suggested the concept of "planetary obligations." In the view of Edith Brown Weiss,

these obligations are incumbent on the present generation of living humans as a whole, and derive

from the basic duty to pass on their environmental heritage in good condition to future generations.

In the view of Christopher Stone, the ecological crisis suggests that natural objects, no less than

human beings, should have rights. However, an extensive legal articulation of these concepts has

yet to occur.

One aspect of the crisis is a mismatch between the interrelatedness of the global ecology and the

parcelling-out of environmental regulation among nation-states whose authority for most purposes

ends at their borders. Various solutions to this problem have been advocated. Among other things,

it has been suggested that the courts of the several nations should use their extraterritorial authority

more extensively to enforce environmental law.

In order to assess the extraterritorial solution, this Note will look at extraterritoriality in context,

with the following four questions in mind:

 

II. Global Regulation: The Alternatives

 

Three basic alternatives for global regulation may be distinguished: the creation of international

agencies with regulatory authority, the establishment of treaties and conventions among the several

nations, and the extraterritorial enforcement of environmental law by the courts of the several

nations.

Extraterritorial enforcement differs from the alternatives in that it creates no entities whose scope

of authority corresponds to the scope of the problem. Instead, it makes the individual state the

arbiter of global norms. In the words of one critic, it accords to the court of a nation state the role

of an "impartial tribunal." Arguably, this implies the danger that such a court might favor the

citizens of its own nation while burdening the citizens of other nations, with international friction

an inevitable result. In fact, attempts by the United States to enforce certain of its laws

extraterritorially have been decried as "imperialism" and have provoked retaliation abroad.

If despite this obvious difficulty extraterritoriality been advocated as a response to global

environmental problems, this may be partly due to the slowness of international process. As one

commentator puts it, the "grail of supranational authority" has proved elusive, due to states'

reluctance to give up their sovereignty. The International Court of Justice has heard only a handful

of environmental cases. Again and again, national governments have refused to ratify the product

of long and difficult treaty negotiations. On the international level, the warnings sounded by

scientists and environmental activists have often seemed to produce more negotiation, theorization,

and political posturing than effective regulation. Whether the legacy of the United Nations

Conference on Environment and Development (UNCED) which was held in Rio in June, 1992, will

change this perception, is still unclear.

As against attempts to create supranational authority, extraterritorial adjudication has the

advantage that its infrastructure is already in place. At least some nations have already passed far-

reaching environmental laws and have relatively effective mechanisms for enforcing them.

International law has long recognized the need for states to apply their laws beyond their own

borders, and in the twentieth century the scope of this permission has been expanding. In certain

areas law, notably securities and antitrust, the exercise of extraterritorial jurisdiction is already

standard practice, and despite the initial friction may be tending toward a universalization of norms

(see discussion infra).

It is true that a certain regime of international regulation is gradually being developed by such

regional groupings as the EEC, LAFTA, SEAN and the Andean Group. As the increasing

cohesiveness of the EEC inspires greater cohesiveness in other regions, these groupings, rather than

either world government or extraterritoriality, represent the wave of the future.

But this market-driven type of regional development may not be good news for the

environment. There is a growing perception that these groupings are bound to strengthen the hand

of the multinational enterprises which, along with governments, are the major actors in the global

environment. In September, 1991, a panel convened by the Council of the General Agreement on

Tariffs and Trade (GATT) set off widespread alarm among environmentalists by holding that United

States restrictions on tuna imports under its Marine Mammal Act violated the GATT treaty. Amid

the resulting furor, GATT in October, 1991, decided to "revive" its Working Group on Trade and

the Environment which, though formed twenty years ago, has never met; however, no date was set

for a meeting of the "revived" group. In recent months, too, the maquiladora plants south of the

U.S.-Mexico border have cast North American efforts at market unification into an ugly light from

the environmental as well as humanitarian standpoint.

It is conceivable that strengthened institutions of world government might strengthen the

hand of national governments vis-a-vis the regional economic groupings. At the UNCED

conference, the Secretary General of the International Court of Justice, Eduardo Valencia-Ospina,

pointed out that court has both the authority and the precedent to develop an expanded body of

international environmental law. Such a jurisprudence would, on the face of it, have a chance of

being driven by global concerns rather than regional rivalries. On the other hand, world government

arguably shares regional government's vulnerability to influence by multinational interests; as an

indicator, the World Bank's environmental record is ominous.

The ultimate motive for urging extraterritorial adjudication may be a mistrust of supranational

regulation, a sense that "small is beautiful," very relatively speaking. It is arguable that as

government goes multinational, its centers increasingly distant from the grass roots, it becomes more

vulnerable to the influence of the multinational corporations. Moreover, large and intrusive as the

United States government may be, the addition of a supranational layer of government threatens

further magnification of power and increased intrusiveness. As a response to these anxieties,

extraterritorial jurisdiction thus offers the nation a possible means of defending the public interests

it purportedly represents against large concatenations of private interests.

The nation thus occupies an ambiguous position in the field of the global environmental problem.

On the one hand, the nation stands for parochialism and pursuit of local interests that potentially

conflict with global welfare. On the other hand the nation stands for community, with its complexity

of motive and design, as against the unidimensional thrust of commercial purpose. The single nation

is envisioned as capable of representing all nations in asserting communal responsibility for the

common environment.

Could this reliance on the nation in a global context conceivably be justified? In the view of this

Note, a positive answer would depend on two factors: first, the existence of well-articulated

international aspirational norms which could serve as guidelines for the courts of each nation; and

second, their will and ability of each nation's citizens to impose on their representatives a mandate

of consideration for the world environment. In other words, the wise and effective use of

extraterritoriality would ultimately need to be predicated on a responsible political culture.

Regarding aspirational standards, one commentator wrote:

Absent the coercive power of a supranational authority, recommended standards may

in some cases be more effective than binding ones. Whereas the unanimity

requirement for the adoption of binding standards often leads to a lowest-common-

denominator result, recommended standards can be more stringent. Even if such

standards are not observed universally, the force of international opinion virtually

requires nonconforming states to put forth reasons -- even if based on notions of

sovereignty -- for their non-observance: they cannot merely hide behind their

formalistic lack of consent to the rule.

A well-codified set of such standards could be enforced extraterritorially by the courts of the several

nations, and such action would be perceived as fair in the light of the consensus represented by such

a code. In the words of Justice Cardozo, "International law . . . at times, like the common law . .

. has a twilight existence during which it is hardly distinguishable from morality or justice, till at

length the imprimatur of a court attests its jural quality." Such a process has played a part in the

international acceptance of human rights law.

The second factor -- a local political consciousness capable of giving global environmental

concerns greater weight in national government -- presents the greatest challenge, and is largely

outside the scope of this Note. However, it is a challenge which all attempts at advocacy of the

global public interest must eventually confront. A responsible political culture is both an end in

itself and an indispensable means to every other means that might further the common good. Thus

with every proposed means, its implications for this overarching means-and-end must be

considered. In part VI of this note, Edith Brown Weiss's suggested "ombudsmen for the unborn"

or "planetary rights commissioners" will be contemplated in the light of the same considerations.

In a preliminary summing-up, then, it appears that the extraterritorial application of

environmental law is not one simple project, but four interrelated projects: 1) the expansion of the

scope given to extraterritorial jurisdiction in international law; 2) the development of an

extraterritorial jurisprudence in the courts of the several nations 3) the international codification of

recommended substantive standards and 4) the inculcation of a political consciousness that would

make enforcement of global environmental law a national priority. The Note will explore these

aspects in that order.

 

III. The Framework of International Law

 

International law by definition recognizes one common interest of nations -- the need for a

common set of guidelines for avoiding or settling disputes. Through most of its history, however,

international law has been concerned more with avoiding conflicts among interests presumed to be

adverse, than with promoting cooperation toward common goals. Pre-twentieth century

international law was primarily a set of conventions for demarcating the interests of competing

states.

This history is reflected in the "five principles" -- nationality, territoriality, the protective

principle, passive personality, and universality -- that have crystallized as the grounds on which the

courts of a nation may assume jurisdiction over a defendant or the parties in a dispute. It is

appropriate to recur to these fundamentals in the light of their application to environmental issues.

The oldest of these principles is nationality, whereby a state may take jurisdiction if an offender

is one of its nationals, no matter where the offense was committed. This principle goes back to the

notion of the tribe as a coherent group, rather than to the state as an authority exercising control over

everything within a given territory. Today, according to one commentator,

there are striking differences in the extent to which (nationality) is used in the

different national systems. The United States rarely applies its laws extraterritorially

solely on the basis of the nationality principle.

The application of nationality is restricted by principles of comity and by the presumption against

extraterritoriality (see infra). However, nationality is still important in efforts to reach foreign

subsidiaries of corporations formed under the laws of a state.

Of more recent origin, but today most widely invoked, is the principle of territoriality, whereby

a state may assume jurisdiction over acts taking place within its territory. This principle, which arose

with the modern nation-state, is today everywhere accepted; disputes concern its scope. The

nineteenth-century American courts, in particular, often construed this principle strictly and held

that states had jurisdiction only over acts taking place within their borders. In the past century the

principle has been extended to include acts begun in the nation's territory but completed abroad (the

"subjective" territoriality principle) and acts begun outside the territory but completed, or having

an effect, inside it (the "objective" principle of territoriality).

Third, under the protective principle a state is entitled to exercise jurisdiction over conduct which

threatens its security or the operations of its government. Examples of such acts include

counterfeiting, espionage, perjury before consular officials abroad, and conspiracy to evade customs

or immigration laws.

Fourth, the passive personality principle entitles a state to assume jurisdiction where one of its

own nationals was the victim of a crime. This is traditionally the weakest of the five principles,

though in recent years it has occasionally been invoked as a rationale for dealing with acts of

terrorism.

Finally, the universality principle states that any nation that can obtain custody over the

perpetrators of certain crimes is entitled to exercise jurisdiction over them. This principle was

developed to deal with piracy: "a pirate," as one seventeenth-century judge put it, "is the enemy of

the human race." Here, then, the nation state acts as the representative of the international

community in punishing acts universally condemned. In recent years this principle has been

expanded to cover other crimes recognized as "of universal concern," such as hijacking, terrorism,

and the slave trade.

These principles may be divided into three groups, according to their underlying motives.

Nationality and passive personality seem based on an "affiliation" model of the state. The territorial

and protective principles might be said to rest on a "property" model of international relations. Only

universality assumes interests common to all nations, and it has historically been applied only in

certain limited situations. This confirms the historical reality noted at outset, that in international

law, universal considerations have been honored mainly by rules that limit the scope of

jurisdiction.From the standpoint of the

global environment, the "property" approach is philosophically deficient, since species and

ecosystems, if not indeed sacred in themselves, are part of a "common patrimony" and their

destruction is an injury not to one nation but to the planet and humankind as a whole. Of the

traditional principles, only universality considers the nation as representative of the entire human

community and authorizes it to use its judicial apparatus to suppress acts that are regarded as

generally harmful.

As stated, universality has hitherto been applied almost exclusively to a narrow range of criminal

actions -- piracy and, more recently, terrorism. However, some scholars have envisaged the

extension of this principle to the area of environmental law: [D]estruction of the environment and

depletion of resources have become as universal a concern as terrorism and piracy. Like

terrorism, degradation of the environment endangers every citizen of every country. Like

piracy, degradation of the environment will make the global commons unsafe.

Against such an expansion of the "universality" principle it might be argued (from the standpoint

of intergenerational equity, if not from a belief in the rights of nature) that, unlike piracy and related

offenses, the exploitation of the global environment is defensible in many cases as an inevitable

result of expanding human needs. The decision whether or not a given action is appropriate requires

a balancing of priorities and, as often as not, a difficult choice.

An alternative to expanding the traditional universality principle would be to elevate Weiss's

"intergenerational equity, or justice between generations" to a sixth jurisdictional principle. This

principle would be not only spatially encompassing but also "intertemporal"; it would regard the

"natural and cultural legacy" as a "trust" which each generation receives from its predecessors and

must pass on. The application of this principle would entail, each time, a complex balancing of

present and future needs. Possibly, as an alternative to expanding the "universality" principle, the

principle of "intergenerational equity" could be added to the list of grounds for jurisdiction. This

new principle would allow the courts of any nation to take jurisdiction where a given action would

unjustifiably impair assets of the "planetary trust" (but see further discussion infra).

In any event, the wider use of extraterritorial adjudication as a response to the global

environmental crisis implies a shift of the emphasis in environmental law from abstention principles

to a positive duty to invoke judicial authority. Revision of the list of jurisdictional principles to

reflect global environmental concerns would be one step in this direction. The application of the

new principles would depend, of course, on the courts of the several nations.

 

IV. Extraterritoriality in the Courts of the United States

 

Since the early years of the nation, United States courts have exercised extraterritorial

jurisdiction. As might be expected, the early cases are mostly maritime cases, involving natural

persons, with the United States applied substantive international law under the universality

principle. These cases will be discussed infra, at the end of this part of the Note.

Only at the end of the nineteenth century, when the expansion of commercial enterprise

created a demand for market regulation abroad, were U.S. courts called upon to enforce this country's

own legislation abroad. The courts responded, at first reluctantly, then with a greater willingness.

In so doing, the courts have repeatedly had to confront the question of which statutes should be

applied extraterritorially.

In United States v. Bowman, decided in 1922, the Supreme Court formulated a general

criterion for extraterritorial applicability. In this case, the Court decided that a statute providing

criminal penalties for acts directly injuring the government was applicable to a fraud against the

government which had been perpetrated on foreign soil. In reaching this conclusion, the Court drew

a basic distinction between statutes aimed at protecting the domestic community, and statutes aimed

at preventing harms that reach beyond the domestic community. For the first type of statute, the

court would apply a presumption of extraterritoriality, which could be rebutted if the Court finds an

implied or explicit Congressional intent to make the statute applicable abroad. The second type

of statute, however, can be applied extraterritorially without the expression of Congressional intent,

because to limit such a statute to a strictly domestic application would undermine its effectiveness.

The principle enunciated in Bowman would seem applicable to all kinds of cases -- criminal,

market, labor, and environmental. However, the principle has not in fact been applied evenhandedly.

As Jonathan Turley and others have pointed out, courts have often been more than willing to

construe an extraterritorial mandate in market cases; but in labor and environmental cases, courts

have tended to apply the presumption against extraterritoriality, without first inquiring whether the

statute aimed at preventing harms that reach beyond the domestic community. Discouraging as this

discrepancy is, the market cases can still suggest what might be possible if courts did apply the

Bowman rule evenhandedly.

 

A. The Evolution of Extraterritoriality in Anti-Trust and Securities Litigation

 

The question of extraterritorial jurisdiction in a modern corporate context first surfaced in

connection with the Sherman Act, which Congress passed in 1890. Sec. 1 of the Act forbids

"(e)very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade

or commerce among the several States, or with foreign nations." The question soon arose whether

the Act applied to conduct outside the United States.

The first major case addressing this question was American Banana Co. v. United Fruit Co.,

which the United States Supreme Court decided in 1908. The defendant in this case, a New Jersey

corporation, had "monopolized and restrain(ed)" the banana trade for some years. The plaintiff,

McConnell, had started a banana plantation in Panama, but was dispossessed by Costa Rican troops

entering Panamanian territory at the defendant's instigation. The Supreme Court refused

jurisdiction. In an opinion written by Justice Holmes, the Court found "startling" the notion that an

act of Congress could apply to acts done "outside the jurisdiction of the United States and in that of

other states." The Court held that "the character of an act as lawful or unlawful must be determined

wholly by the law of the country where the act is done." The "laws" of Costa Rica, which had

proved singularly pliant before the power of United Fruit, stood as a rigid barrier to shield United

Fruit from the United States Supreme Court.

American Banana has never been specifically overruled; it is still invoked by parties

wishing to avoid extraterritorial jurisdiction, and sometimes its reasoning prevails.

However, subsequent cases have strongly qualified its authority. In 1945, the Second Circuit, with

Judge Learned Hand presiding, decided United States v. Aluminum Co. of America ("Alcoa"). The

case concerned a number of companies, all of them foreign except Alcoa, which had allegedly

conspired to impose quotas on imports of aluminum ingots into the United States. Judge Hand

determined that Alcoa had not participated in the conspiracy, but he refused to dismiss the

indictment against the Canadian company which was allegedly involved, and held that the Sherman

Act applied.

Judge Hand did not read the Sherman Act itself as containing a blanket mandate for its

extraterritorial application, even though the act prohibits conspiracies "in restraint of trade or

commerce among the several States, or with foreign nations." In a pungently alliterative line, he

refused to "impute to Congress an intent to punish all whom its courts can catch, for conduct which

has no consequences within the United States." But as the converse of this common-sense

observation, Judge Hand concluded that where conduct does have an effect within the United States,

an intent to regulate extraterritorially can be inferred even absent an unequivocal mandate. Judge

Hand found it to be "settled law . . . that any state may impose liabilities, even upon persons not

within its allegiance, for conduct outside its borders that has consequences within its borders which

the state reprehends." The Sherman Act could therefore apply to conduct of aliens outside the

United States if 1) the conduct was intended to have an adverse effect on United States commerce

and 2) if it did have such an effect. While it was up to the plaintiff to prove the existence of intent,

once this was proved the burden would shift to the defendants to show that the adverse effect had

not actually occurred.

This "effects doctrine," as it came to be called, was fortified by the Ninth Circuit in Timberlane

Lumber Co. v. Bank of America. Timberlane charged that Bank of America had conspired to

monopolize logging in Honduras. Here the conduct, which took place on foreign soil and involved

foreign nationals, had its "most direct effect" in Honduras rather than in the United States. The test

enunciated by the court had three parts:

1. Does the alleged restraint affect, or was it intended to affect, the foreign commerce

of the United States?

2. Is it of such a type and magnitude so as to be cognizable as a violation of the

Sherman Act?

3. As a matter of international comity and fairness, should the extraterritorial

jurisdiction of the United States be asserted to cover it? 

In this test, Judge Hand's requirement of both intent and effect is converted into a requirement of

either intent or effect. Furthermore, this "balancing" of various international interests tends to

replace inquiry into congressional intent, giving rise to the objection that it "ignores the question

whether the defendant had any reason to believe that its conduct would subject it to the jurisdiction

of the United States."

United States courts have not hesitated to assert "personal" jurisdiction in antitrust cases, or to

enforce judgments on the property of foreign corporations found in their jurisdictions. in United

States v. Scophony Corp., a British corporation that had opened a branch in the Southern District

of New York argued that it could not be sued in the District for antitrust violations because as a

foreign corporation it was not "found" there within the meaning of sec. 12 of the Clayton Act. The

Court refused to distinguish between Scophony and its U.S. subsidiary. In an early "piercing" of the

"transnational corporate veil," it stated: "(T)he determination is (not) to be made for such an

enterprise by atomizing it into minute parts or events, in disregard of the actual unity and continuity

of the whole course of conduct." And in In Re Uranium Antitrust Litigation, decided by the

Seventh Circuit in 1980, the court upheld an injunction issued by the district court to prevent nine

foreign corporations against whom a default judgment had been rendered in an antitrust suit from

transferring their assets out of the country to avoid payment of the judgment.

United States courts have been similarly vigorous in enforcing the anti-fraud provisions of the

Securities Act of 1933 and the Securities Exchange Act of 1934. Passed in the hope of preventing

future stock-market crashes by discouraging irresponsible speculation, these acts require registration

of securities with the Securities Exchange Commission (SEC) and set minimum informational

requirements for advertising of shares. The securities laws are still less explicit than the Sherman

Act about their extraterritorial reach. Indeed, the Securities Exchange Act explicitly states that it

shall not apply to any person insofar as he transacts a business in securities without

the jurisdiction of the United States, unless he transacts such business in

contravention of such rules and regulations as the Commission may prescribe as

necessary or appropriate to prevent the evasion of this chapter.

Moreover, the Securities Exchange Commission itself has never prescribed such "rules and

regulations." The courts have based the extraterritorial application of the act upon a Congressional

mandate which from the text of the statute appears dubious at best.

In Schoenbaum v. Firstbrook, decided in 1968, the court applies an "effects" test, resembling

the "objective territoriality principle," to a problem in securities law. In that case, a Canadian

corporation, registered on the American Stock Exchange, had sold some of its shares in Canada to

controlling Canadian shareholders. The plaintiff, an United States citizen and shareholder in the

corporation, alleged that the price of the shares in this transaction had been artificially low. The

Second Circuit found a violation of securities law, because the sale had an adverse effect on the

American securities market.

In Leasco Data Processing Equip. Corp. v. Maxwell, decided in 1972, the Second Circuit

developed a "conduct" test, similar to the "subjective territoriality principle," where the connection

with a United States stock exchange was too tenuous to warrant application of an "effects" test.

Maxwell, a British citizen, had traveled to the United States to persuade the officers of Leasco, a

corporation registered on the American Stock Exchange, to purchase a company owned by the

defendant. In these contacts Maxwell knowingly misrepresented the assets and prospects of the

company in question, which was not registered on a United States stock exchange. The contacts

were renewed, and further fraudulent representations made, in London. Finally, Leasco agreed to

purchase the company through a foreign subsidiary which was not registered on a U.S. stock

exchange. After purchasing $22,000,000 of stock, Leasco discovered the deception, stopped the

stock purchases, and sued. In taking jurisdiction, the Second Circuit indicated that the fact that the

parent corporation of the defrauded purchaser was registered on a U.S. stock exchange would not

have been sufficient grounds for jurisdiction if all the misrepresentations had occurred in England.

On the other hand, contacts between foreign nationals in the United States leading to fraudulent sales

of securities not registered on a U.S. stock exchange would not have triggered the Securities

Exchange Act either. However, given that a United States company was involved, the

jurisdictional requirement was satisfied by the fact that the misrepresentations in the United States

had constituted an "essential link" or a "substantial" part of the fraudulent transaction. If the

tenuousness of the connection in Leasco between the transaction and United States markets is added

to the tenuousness of the Congressional mandate for enforcement of the Securities Exchange Act,

the willingness of courts to construe or construct an extraterritorial mandate in market cases is very

striking.

By the holdings of Schoenbaum and Leasco, liability under United States securities legislation

can be found either on grounds that some part of the conduct took place in the United States, or on

grounds that it had an effect in the United States. This extraterritorial reach of securities legislation

appears comparable to the reach of antitrust legislation under the Timberlane test.

This extraterritorial jurisprudence has frequently elicited accusations of legal "imperialism"

from the international community, and has sometimes provoked legal retaliation. A particular sore

point is the application of section 4 of the Clayton Act, which was first passed in 1914, and which

provides treble damages to a plaintiff injured by a violation of antitrust law. In 1980 the United

Kingdom reacted to the extraterritorial enforcement of this provision by passing the Protection of

Trading Interests Act, with its "clawback" provision which gives a British loser in an antitrust suit

the right to sue in British court for the noncompensatory two-thirds of the treble damages award.

Yet despite the resentment and retaliation, U.S. efforts to impose international regulation in this

field appear to have been partially successful. The United States is no longer as isolated as it once

was in attempting to regulate international markets. Articles 85 and 86 of the Treaty of Rome, which

was signed in 1957 and forms the basis for the European Economic Community, consist of

"competition" (i.e. anti-trust) law. These articles list prohibited practices in restraint of trade, and

their provisions have been expanded by decisions of the ECC governing bodies. The penalties for

violation are less severe than the felony criminal sanctions or the private treble damages which may

be imposed under United States law. However, the offending business agreement is rendered null

and void, and fines may be levied; in recent years a tendency to impose heavier fines has been

noted. These provisions are now being enforced, not only against corporations based in the EEC

nations, but also extraterritorially, against United States-based corporations among others.

Thus, U.S. extraterritorial regulation may have aroused not only resentment but also

emulation. According to Restatement (Third) of Foreign Relations, sec. 416, Reporters Note 9:

"increasingly, there have been efforts by antitrust authorities of various countries to harmonize their

activities."

The principles of extraterritorial jurisdiction developed in the anticompetitive activities and

securities transactions have been codified, in moderated form, in Chapter IV of the Restatement

(Third) of Foreign Relations IV. Section 415 of that chapter states that anticompetitive activities are

subject to United States jurisdiction if they take place in the United States, regardless of the

nationality of the parties (subsec. 1), if "the principal purpose" of the activities is to interfere with

United States commerce, and the activities do have "some effect on that commerce" (subsec. 2); or

if the activities "have substantial effect on the commerce of the United States and the exercise of

jurisdiction is not unreasonable" (subsec. 3). This section, then, incorporates a modified Timberlane

test: either intent or effects will trigger jurisdiction, but the intent must be "the principal purpose,"

and the effects must be "substantial." The more elaborately spelled-out provisions on securities

transactions in sec. 416 are comparable in scope.

These results may well be contemplated by environmentalists with some wistfulness. The

"effects" test is particularly appealing, given that significant action at any point in the ecosphere may

have some effect at every other point. Should an "effects" test be adopted, a requirement of

"substantial" effect would doubtless have to be litigated. The application of an "effects" test

would carry the risk that national courts would be more sensitive to their neighbors' environmental

sins than to their own; but as in market cases, a "harmonization" of regulation might eventually come

about.

If courts were to apply an irrebuttable presumption that an action with a major environmental

impact anywhere in the world will eventually have an effect within the territory of any given nation,

such a presumption would be virtually indistinguishable in practice from a principle of

"intergenerational equity." Each nation would be authorized to act on behalf of the human

community; and the inquiry might then focus on two questions: 1) whether the action had a major

environmental effect and 2) whether this effect was justified in the light of all the factors.

This suggestion admittedly raises the specter of five billion claimants for any given

environmental injury. Here the "ombudsmen for future generations" or "planetary commissioners"

(see discussion infra, part VI) might offer assistance, by receiving and sifting complaints and

bringing those which appear to have merit in whichever jurisdiction seems likely to provide a fair

and adequate remedy.

Given the present trend of U.S. jurisprudence, these possibilities are likely to remain theoretical

for some time to come. However, theoretical possibilities are still worth contemplating for the

inspiration they may give to advocacy and constructive legal and social thought.

 

B. Extraterritoriality in Labor Cases

 

United States courts have shown greater reluctance to extend protection to citizens working

abroad, than to corporations in international markets. The leading extraterritorial labor case is Foley

Bros. v. Filardo, decided by the Supreme Court in 1949. The plaintiff in that case worked abroad

for a United States-based employer at a task that often demanded more than eight hours per day, but

his employer denied him overtime pay, which in the United States would have been contrary to the

Eight Hour Law. Despite the U.S. citizenship of both plaintiff and defendant, the Court refused

to give the Eight Hour Act extraterritorial application. Instead, the Court applied the presumption

against extraterritoriality, that "canon of construction which teaches that legislation of Congress,

unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United

States." The Court also based its holding on the view that to regulate United States-based

employers abroad would mean regulating alien workers, as well as citizens working abroad.

Justice Frankfurter's concurrence incorporated a letter from the Department of Labor which

supported the Court's view.

This decision represents a withdrawal from the historically sanctioned principle of nationality,

whereby the members of a nation wherever situated were entitled to the protection of its laws. It also

contrasts with the holding in Alcoa, decided four years earlier, that conduct having an "effect" within

the United States is subject to United States jurisdiction. Significantly absent from Foley is any

consideration of the possible effect of the employer's conduct on the labor market within the United

States.

Title VII of the Civil Rights Act, which applies to employment discrimination, contains language

arguably calculated to avoid the result reached in Foley. The Foley court had reasoned that because

the extraterritorial application of the Eight Hour Act would have resulted in the regulation of aliens

as well as of United States citizens abroad, Congress must have intended to apply it only

domestically. Title VII states that the act does not apply "with respect to the employment of aliens

outside any state." In Bryant & Lillibridge v. International School Servs., Inc., the District Court

of New Jersey interpreted this to mean that since aliens outside any state were explicitly excluded,

United States citizens outside any state must be implicitly included. In Boureslan v. Aramco,

legislative history and the interpretation of the EEOC were adduced in support of this view;

nevertheless, the Fifth Circuit was unable to find an extraterritorial mandate in Title VII, thus

prompting Jonathan Turley's bitter observation that the principle "out of sight, out of mind" controls

the fate of American workers on foreign soil.

In January, 1991, the Supreme Court affirmed this decision in EEOC v. Aramco. Chief Justice

Rehnquist's opinion rejects an interpretation of the alien exemption similar to that in Bryant,

denies deference to the EEOC interpretation, and cites Foley in applying the presumption against

extraterritoriality. Not content with applying the Foley presumption, Rehnquist reinforces it by

"assum[ing] that Congress legislates against the backdrop of the presumption against

extraterritoriality." With this additional assumption, Rehnquist rejects extraterritoriality except

where Congress has made "a clear statement that a statute applies overseas."

But in Foley, the Court had stated that the inquiry was whether "language in the [relevant act]

gives any indication of a congressional purpose to extend its coverage beyond places over which the

United States has sovereignty or has some measure of legislative control." By this standard, the

evidence for extraterritorial intent, which Rehnquist concedes is "not totally lacking in probative

value," must have sufficed.

Justice Marshall attacked Rehnquist's reasoning in a long, indignant and persuasive dissent.

Besides reciting the weighty evidence for the statute's extraterritorial intent, Marshall tellingly

observed:

The range of factors that the Court considered in Foley Brothers demonstrates that

the presumption against extraterritoriality is not a "clear statement" rule. Clear-

statement rules operate less to reveal actual congressional intent than to shield

important values from an insufficiently strong legislative intent to displace them . .

. When they apply, such rules foreclose inquiry into extrinsic guides to interpretation

. . . and even compel courts to select less plausible candidates from within the range

of permissible constructions . . . The Court's analysis in Foley was by no means so

narrowly constrained.

The decision in Aramco is the more difficult to justify as the refusal of extraterritorial application

arguably defeats Title VII's domestic purpose. In an article published between the Fifth Circuit and

Supreme Court decisions in Aramco, Jonathan Turley pointed out that a ruling that Title VII does

not apply extraterritorially creates a major loophole in Title VII's protection of U.S. workers, since

under such a ruling a multinational employer wishing to discriminate can simply transfer the

employee abroad. Such a rule also creates an incentive for companies to move their operations

outside the United States. Thus, the assumption that in enacting Title VII Congress could be

presumed to be concerned only with domestic matters is still less valid than it was when Foley was

decided.

Justice Marshall's arguments against the overuse of "clear statement" rules are also supported by

an understanding of the legislative process. In an exhaustive review of research and theory, Turley

explains that the traditional canon that statutes in the public interest should be construed liberally

has its justification in the dynamics of legislation. Due to "the comparative success of small interest

groups in furthering their interests relative to larger groups," the legislative process actually

disfavors statutes that will benefit or prevent harm to a large number of citizens. Statutes in the

public interest tend to be vague in their provisions and to be full of loopholes which represent

concessions to private interest groups. Thus liberal rather than strict construction of such statutes

is essential if the public interest is to be served; and there is more than a degree of cynicism in the

Supreme Court's statement that "when it desires to do so, Congress knows how" to mandate

extraterritorial enforcement of a statute. Indeed, there is a growing perception that Congress

"knows how" to pass laws that ring loud with public purposes which cannot be carried out due to the

weakness of their specific provisions.

Theoretically it might have been possible to hope that environmental legislation, even under the

school of jurisprudence which Turley criticizes, could escape the extraterritorial fate of labor laws.

The rule that statutes in the public interest are to be construed liberally is recognized even by Judge

Easterbrook. Judge Posner has included environmental regulations in the category of "public

interest" legislation, while relegating "laws against discrimination" to an intermediate category that

is neither "interest-group [nor] public good legislation" but instead legislation "actuated by widely

held concepts of distributive justice." But this nuance of difference, conjecturably due to the fact

that not only workers but also judges must breathe the federal air, has not often been reflected in the

outcomes of cases, as the following analysis will show. The maquiladora plants south of the U.S.-

Mexico border stand as concrete proof that the causes of social equity and environmental health

cannot be severed.

The "strict constructionist" school of statutory interpretation is, as Turley's citations show,

tantamount to a market theory of legislation. In the words of Judge Easterbrook, "legislative

protection flows to those groups that derive the greatest value from it regardless of the overall social

welfare." Therefore, judicial attempts at finding the true "intent" of a statute are "not only doomed

to fail but will often succeed only in giving one side a potential benefit that it did not pay for

[emphasis added] in Congress."

From another perspective, it is possible to characterize the identification of the legislature with

a marketplace as a refusal of that search for meaning which Victor Frankl identifies as the essential

human quest. Frankl writes that "Man's search for meaning is a primary force in his life and not

a 'secondary rationalization' of instinctual drives." The reduction of a statue to the "deals" it

incorporates may be likened to the reduction of the search for meaning to instinctual "drives." In

both cases, a higher level of meaning is denied, and incoherency results.

This disintegrative process has a direct relation to the problem of global regulation, since

global regulation can come about through the creation of coherency, as well as through the

imposition of new layers of command. If the creation of coherency is frustrated, only the second

method remains. If the dubious implications of the second method are admitted, then the search for

meaning may well be inseparable from the search for social justice -- and for environmental health.

 

C. Extraterritoriality in Environmental Cases

 

From the early cases on, United States court decisions in environmental cases have tended to

apply a strong presumption against extraterritoriality. This appears in United States v. Mitchell,

decided by the Fifth Circuit in 1972 on the basis of the Marine Mammal Protection Act.

In the Mitchell opinion, the Marine Mammal Protection Act appears as an all-too-typical "public

interest" statute, with significant gaps in its drafting. The Act contained two provisions designed to

protect the dolphin, and the relation between the two provisions was unclear. On the one hand, the

act forbade the taking of dolphins without a permit; on the other hand, the act imposed a "general

moratorium" on the taking of dolphins. The prohibition on taking without a permit applied only

to United States territorial waters and to the high seas; the territorial scope of the "moratorium" was

left unspecified. Mitchell, a United States citizen, had captured dolphins for export to Britain

within the three-mile coastal limit of the Bahamas, pursuant to a Bahaman work permit.

The Fifth Circuit reversed the jury verdict against Mitchell. Citing Bowman, the court stated that

the presumption against extraterritoriality applied unless either 1) the "nature of the law" mandated

its extraterritorial application or 2) there was a "clear expression of congressional intent." The

Marine Mammal Act did not pass the first test. As in Foley, "all-inclusive" language was held

insufficient to confer extraterritorial scope, although unlike the Eight Hour Law the Marine Mammal

act had explicitly stated a public purpose -- to protect dolphin species from extinction -- in terms

of which it arguably makes little sense to restrict the application of the act to United States territorial

waters. In stating the requirement of congressional intent, the court cited Foley, although Foley itself

does not require a "clear expression" but states only that legislation does not apply extraterritorially

"unless a contrary intent appears." However, as in Foley, the court examined the statutory

language and the legislative history, before concluding that the presumption against extraterritoriality

must be applied.

Besides applying a stringent presumption against extraterritoriality, the court invoked the principle

of comity ("the control of sovereigns over the natural resources within their territories") and added

that the traditional method of resolving differences in policy among nations was "through negotiation

and agreement rather than through the imposition of one particular choice by a state imposing its law

extraterritorially." The court did not take judicial notice of a number of international treaties

aimed protecting marine mammals which were already in existence. Nor did it pose the question

whether the interest of the Bahamas in exempting Mitchell's acts from the jurisdiction of United

States courts was substantial enough to warrant the application of the comity principle. Without

citing American Banana, the court manifests a reluctance to interfere which is strongly reminiscent

of that case.

A major testing-ground for this reluctance has been the National Environmental Policy Act of

1969. NEPA, hailed by some commentators as an "environmental bill of rights," has proved to

be something less than that. Rather, NEPA is mainly an intragovernmental directive, requiring

federal agencies to prepare an environmental impact statement (EIS) whenever a proposed major

Federal action seems likely to have significant environmental effects. The Act creates an advisory

body, the Council on Environmental Quality (CEQ). Although the Act does not specifically create

a cause of action, the requirement of an EIS has been interpreted by courts in this sense. The

requirement of an EIS does not guarantee that projects found to be environmentally harmful will not

be carried out nevertheless.

It has been argued that application of the EIS requirement to projects destined to be carried out

on foreign soil would not actually be "extraterritorial," since the requirement does not entail

interference with the decisions of another state, but is simply "a procedural tool for American

decisionmaking." On the other hand, where preparation of an EIS entails information-gathering

in foreign territory, considerations of foreign policy may be invoked. Accordingly, a dispute arose

soon after NEPA's passage between the CEQ and the State Department as to the intended

"extraterritorial" scope of the Act. The CEQ contended that the Act applied to Federal actions

everywhere in the world; the State Department contended that it did not apply to proposed actions

within the jurisdiction of any other state.

Again, the dispute was fueled by a significant ambiguity in the language of the Act. The CEQ

could rely on such global rhetoric as the references to the "critical importance of restoring and

maintaining environmental quality to the overall welfare and development of man," the "world-

wide and long-range character of environmental problems," and the "biosphere." The State

Department could point to the Act's references to "the ecological systems and natural resources

important to the Nation," "the social, economic and other requirements of present and future

generations of Americans." At this writing, a bill is pending in Congress which would resolve the

alleged ambiguity and explicitly mandate the application of NEPA to projects carried out on foreign

soil.

In the first circuit court case under NEPA, Sierra Club v. Adams, the D.C. Circuit "assume[d],

without deciding, that NEPA is fully applicable" to construction beyond the borders of the United

States. The court considered chiefly issues of standing and the adequacy of a final environmental

impact statement (FEIS) which the Federal Highway Administration had prepared for the

construction of 250 miles of highway across the Darien Gap in Panama and Colombia. As the last

connecting link in the Pan American Highway that stretches from Alaska to Chile, the projected

stretch of road represented the removal of a natural barrier between ecosystems. The District

Court had accepted the Sierra Club's argument that in the FEIS insufficient attention had been

devoted to two problems: the possibility of an epidemic of hoof-and-mouth disease brought on by

the unimpeded movement of cattle from south to north, and the impact of the highway's construction

on the Cuna and Choco tribes. On appeal, the FHA argued that the Sierra Club did not have standing

to challenge the FEIS, and also suggested that NEPA might not cover "purely local" environmental

impacts, such as the effect on the Cuna and Choco peoples.

In its opinion the D.C. Circuit took a liberal approach to a jurisdictional issues. It held that Sierra

Club members as members of the public had standing based on personal "injury" and thence could

also raise other inadequacies in the FEIS based on the "public interest." Moreover, the court stated

that "because of the statutory and regulatory requirements that the FEIS reflect an 'inter-disciplinary'

and 'integrated' approach, the issues discussed in the statement will be necessarily interrelated and

interdependent." Thus it was possible to litigate the question whether the impact of the project on

the Cuna and Choco peoples had been adequately addressed. However, the court found the FEIS

adequate and vacated a preliminary injunction against construction of the highway.

In Adams the question of impingement on foreign policy was not raised; this question was

litigated in Babcock & Wilcox (1977), in which the Nuclear Regulatory Commission decided that

NEPA does not require the preparation of environmental impact statements where the project is to

be carried out within the jurisdiction of a foreign government. The dispute concerned an American

corporation's application for a license to export reactor components for use in a power station to be

constructed in the then Federal Republic of Germany. Pursuant to an Executive Order, the NRC

transmitted the application to the State Department, which approved the project. A German

antinuclear group requested leave to intervene, arguing that the NRC could not lawfully act on the

application without preparing an EIS under NEPA. In holding that NEPA has no extraterritorial

applicability, the NRC referred to the "patriotic" language in the Act; it acknowledged the "global"

language relied on by the CEQ but minimized the important of that language and stated that the

CEQ's views were not binding on other agencies. Pointing out that NEPA's one explicit reference

to foreign objectives is qualified by the clause "where consistent with the foreign policy of the

United States," the NRC found that foreign policy considerations precluded second-guessing the

West German government on its own environmental needs. The NRC distinguished Sierra Club v.

Coleman (the name of Adams in the district court) by pointing out that whereas the United States

retained substantial control over the Darien Gap construction project, the reactor was to be

constructed under the sole supervision of the German government.

In 1979 President Jimmy Carter attempted to settle the "extraterritoriality" of NEPA by issuing

Executive Order No. 12,114, which prescribed procedures for the preparation of an EIS on federal

actions abroad. However, this directive left many loopholes for agencies to avoid preparing an

EIS. Moreover, the Executive Order specifically stated that it created no right of action against

noncomplying agencies. In effect, this directive, while professing concern for the global

environment, resolved the question of NEPA's applicability overseas in the negative.

Nonetheless, the question of NEPA's "extraterritoriality" continued to be argued in court. In 1981

the District of Columbia Circuit gave a negative answer to this question in Natural Resources

Defense Council, Inc., v. Nuclear Regulatory Commission. This case concerned a permit which

the Nuclear Regulatory Commission had issued to Westinghouse Electric Corporation for the export

of a nuclear reactor to the Philippines. The project was controversial, both in the United States

and abroad. Critics pointed out that the proposed site a) lay over an earthquake fault line which in

1976 had moved, killing some 4,000 people; b) was overlooked by an active volcano, Mt. Natib,

five miles away; and c) was only twelve miles away from a naval base where over 12,000 United

States citizens were in residence. Nevertheless, the Philippine government under President

Marcos declared itself in favor of the project; it was alleged that Westinghouse had engaged in

extensive bribery to produce this result. Natural Resources Defense Council sued to compel the

NRC to prepare an EIS.

In deciding the case, the court admitted that the issue was not extraterritoriality in the strict sense,

because NEPA does not "proscribe[] or prescribe[] activity in the sovereign territory of a foreign

country." Nevertheless, the court considered that an "extraterritorial effect" was involved because

 

Conditioning an export licence on the health, safety and environmental standards we think

sound for the foreign nation's regulation directs that nation's choices just about as effectively

as a law whose explicit purpose is to compel foreign behavior.

 

In an unprecedented inversion of the "effects" test, the court appears to suggest that a government

agency could not be compelled to take an otherwise mandated action within its own territory, if that

action would have an effect outside its territory.

Upon this basis, the court proceeded to apply an extremely stringent version of the presumption

against extraterritoriality, requiring not simply a clear indication of extraterritorial intent, but "an

unequivocal mandate from Congress" to overcome it. This amounts to the "clear statement" rule

which the Supreme Court was later to impose in EEOC v. Aramco (see discussion supra).

Moreover, the court stated that even had an "unequivocal" Congressional mandate existed, a court

could still have refused to carry it out if the conduct "occurred outside the territory of the United

States, had -- or was intended to have -- no effects within the United States, or involved no conduct

of nationals of the United States [emphasis added]." The court thus relied on a principle of strict

"territoriality" and deference to a foreign sovereign's decision where, as in American Banana, the

decision may have resulted from bribery by United States citizens.

By implying that the comity principle of international law may trump even an "unequivocal

mandate" by Congress, the court inverted the usual relation between congressional mandate and

international law (see discussion infra), whereby a domestic court has no authority to void a

congressional mandate merely because it conflicts with international law. In a striking twist,

international law was given precedence over national law in order to defeat the interests of the global

community.

In a more recent case, Greenpeace U.S.A. v. Stone, the District Court of Hawaii attempted to

strike a balance on the question of NEPA's "extraterritorial" reach. In that case, Greenpeace sued

to compel the U.S. Army to prepare an EIS, pursuant to NEPA, on the removal of chemical weapons

from Germany and the destruction of these weapons at a disposal site on a Pacific atoll. The German

government was participating in the project, and a German court had reviewed and approved the

safety measures. Regarding the actions at the Pacific site, the Army had already prepared three

EIS; regarding the transportation phase, the Army had prepared a Global Commons Environmental

Assessment, pursuant to Executive Order No. 12,114. But the Army refused to prepare an EIS on

the movement of the weapons within Germany, pointing out that the Executive Order required

agencies to evaluate only the impact on "a foreign nation not participating with the United States and

not otherwise involved in the action." The army urged application of the presumption against

extraterritoriality and also argued that the preparation of an EIS would both infringe on Germany's

sovereignty and encroach upon the President's discretion in foreign policy matters. The court agreed

with the Army that NEPA was not applicable to the movement of the weapons within Germany;

however, it limited its findings to the facts of the case and stated that under some circumstances the

EIS requirement of NEPA might apply to some projects carried out on foreign soil. In the court's

view, Congress, realizing the potential conflict between environmental and foreign policy

considerations, had deliberately left the "extraterritoriality" of NEPA open, to be decided case by

case. An EIS would be required, the court stated, where the "United States agency's action abroad

has direct environmental impacts within this country, or where there has been a total lack of

environmental assessment by the federal agency or foreign country involved." Thus the Hawaii

District Court would presumably have agreed with the NRDC that an EIS was required for the

Philippine reactor site.

In contrast, a recent holding by the District of Columbia District Court applies the Aramco

holding so as to eliminate such nuances. In Environmental Defense Fund, Inc. v. Massey,

the Environmental Defense Fund sought to enjoin the National Science Foundation from

incinerating "food related waste and selected domestic waste" at NSF's McMurdo Station in the

Antarctica, on grounds NSF had not complied with the environmental analysis requirements of

NEPA. In urging that NEPA applied to actions taken in the Antarctic, EDF pointed to "NEPA's

statutory language, legislative history, the interpretation of NEPA's implementing agency, CEQ, and

the applicable case law," as well as to the fact that application of NEPA in Antarctica, which is part

of the "global commons," would not entail interference with the sovereignty of any foreign nation.

Applying Aramco, the court stated:

The Court cannot ferret out a clear expression of Congress' intention that NEPA

should apply beyond the territorial jurisdiction of the United States. Rather, NEPA contends

language such as "the human environment" see 42 U.S.C. sec. 4332(2)(C), "the worldwide

and long-range character of environmental problems" see id. at sec, 4332(2)(F), and the

purpose of NEPA is to "encourage productive and enjoyable harmony between man and his

environment [and] to promote efforts which will prevent or eliminate damage to the

environment and biosphere." See id. at sec. 4321.

While Congress may have selected broad language to describe NEPA's purpose,

Congress failed to provide a clear expression of legislative intent through a plain statement

of extraterritorial statutory effect.

Therefore, the court felt compelled to conclude that NEPA does not apply in Antarctica, even while

professing itself "concerned with the manner in which NSF undertook the Environmental Impact

Assessment."

In Massey, the Aramco rule is applied in the absence of the sovereignty considerations which

may possibly have been present in the Aramco case itself, in a situation where no foreign powers

were involved and where the United States government was acting alone. In such a situation it

would seem appropriate to invoke the arguments, cited supra, that the question of NEPA's

applicability to projects undertaken abroad is not even a question of extraterritoriality. Thus the

Massey decision demonstrates not only the eviscerating effect of Aramco, but also a judicial mood

in which courts, with increasing frequency, see themselves "compelled" to construe statutes in the

public interest strictly, without looking very far for ways around this necessity.

Aramco was also applied by the Southern District of New York in Amlon Metals, Inc., v.

FMC Corporation, where the plaintiff had sought sought redress under the Resource Conservation

and Recovery Act (RCRA). Amlon, as representative of a British recycling firm, contracted with

FMC to acquire copper residue for processing in England. The residue was to be free from harmful

impurities. In due time, FMC filled a number of containers with residue for shipping. Without

Amlon's knowledge, the drivers of the trucks that took the containers from FMC's plant to the cargo

ship were told to wear respirators, and the containers were marked "corrosive." Upon arrival in

England, the containers gave forth a noticeable odor, and it eventually transpired that they contained

toxic and hazardous substances. The Health and Safety Executive of the United Kingdom, on

being notified of the problem, required the British company to store the residue in steel drums.

The British company brought suit in England, but the British court dismissed the case on grounds

the alleged conduct took place in the United States and United States law would apply. The British

firm, through Amlon, then sued FMC in the Southern District Court of New York. Besides RCRA,

Amlon invoked the Alien Tort Statute. The Alien Tort Statute claim involves the applicability of

substantive international law in United States courts, and will be considered infra.

The RCRA claim was based on RCRA's citizen suit provision, which provides that

any person may commence a civil action against any person . . . including any past

or present generator, past or present transporter, or past or present owner or operator

of a treatment, storage, or disposal facility, who has contributed or who is

contributing to the past or present handling, storage, treatment, transportation, or

disposal of any solid or hazardous waste which may present an imminent and

substantial endangerment to health or to the environment.

Arguing that this provision did not apply to waste located within the territory of another sovereign

nation, the defendant invoked the presumption against extraterritoriality as in Foley and EEOC v.

Aramco. Amlon countered by invoking the "conduct test" developed in Leasco, urging that RCRA

applied because the actions that created an environmental hazard had occurred in the United

States. Amlon argued that the principle of comity behind Foley and Aramco did not apply because

there was no interest, such as a foreign nation's interest in a uniform system of labor regulation

within its borders, that would be encroached on by the application of RCRA against FMC.

Moreover, Amlon pointed out, under sec. 602(2) of Restatement (Third) of Foreign Relations, a state

where pollution originated must give private parties who have suffered "significant" injury "access

to the same judicial or administrative remedies as are available in similar circumstances to persons

within the state."

The court did not reach the issue of whether the conduct test was applicable, but based its holding

on a finding that Congress did not intend RCRA to apply extraterritorially. After pointing out the

domestic focus of the Act's language, the court declined to read "any person" in the citizen suit

provision as establishing RCRA's extraterritorial applicability. The court pointed out a venue

provision which states that a citizen suit "shall be brought in the district court for the district in

which the alleged endangerment may occur." Again, the court cited Aramco as precedent for the

use of an ill-fitting venue provision to rule out extraterritorial application. Finally, the court

referred to four law review articles dealing with the problem of hazardous waste exports (one

subtitled "Burying Our Neighbors in Garbage") as authority for the proposition that RCRA does not

apply extraterritorially.

It is possible to admit the weakness of the evidence for extraterritorial intent in RCRA, and at the

same time to recall that the evidence for the extraterritorial mandate of the Securities Exchange Act,

which the court found persuasive in Leasco, was not much stronger. More disturbing still is the

court's citation of scholarship concerned with the problem of hazardous waste export, as evidence

for the proposition that RCRA affords no remedy for the problem. Indeed, this separate opinion

issued on two claims in a case that apparently raised other claims as well, could be read as an explicit

message that it is legal to export hazardous waste, thus removing whatever deterrent effect RCRA's

uncertain applicability might have exerted. As in Aramco, it is difficult to avoid receiving an

impression of cynicism.

The sense of wrongness which this holding inspires is only reinforced by the court's recitation of

language in the statute tending to show that "Congress was concerned with hazardous waste

problems in the United States, not in foreign countries." Thus, the statute characterizes the

problem of waste disposal as "a matter of national scope and concern," and finds that "alternatives

to existing methods of land disposal must be developed since many of the cities in the United States

will be running out of suitable solid disposal sites within five years unless immediate action is

taken." Perhaps indeed the shipping of hazardous waste to one's neighbors represents an

"alternative"; but such an alternative is surely calculated to bring the United States into bad odor with

its neighbors, literally and figuratively. One feels that between nations as between individuals, the

rule "what is hateful to you, do not do to your neighbor" should apply.

In terms of the jurisdictional principles discussed supra, perhaps one could say that the

worldwide environmental crisis should prompt not only a wider use of the universality principle (or

introduction of an "intergenerational equity principle"), but also a greater reliance on the nationality

principle, as an expression of each state's responsibility for the environmental conduct of its own

nationals.

Such an approach would not be wholly without precedent, as Justice Cardozo's above-cited

dictum that international law is at some points indistinguishable from morality, may suggest.

International environmental action ultimately depends upon a global morality; and as the following

analysis will show, such a morality has now and then formed the basis for a judicial decision.

 

D. International Law as a Basis for Decision

 

The discussion of the "effects doctrine" and the "conduct test" demonstrates that a nation's

separate exercise of jurisdiction can affect international law. The converse is also true: the

framework of international legal expectations can influence the jurisprudence of the several nations.

In the cases so far discussed, international law has been applied largely in a restrictive sense. The

principle of comity, or its variant the act-of-state doctrine, has been invoked to shield conduct

outside the United States which a foreign sovereign could conceivably have an interest in regulating.

The Amlon opinion, however, contains a reminder that international law can also invoked

expansively, for the protection of global interests. In that case, the agent for the defrauded British

corporation sued not only under RCRA but also under the Alien Tort Statute, which provides: "The

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." Since Amlon did not allege the

violation of a specific treaty, the issue was whether FMC's actions had constituted a violation of the

law of nations.

In support of this claim Amlon relied on relied on Principle 21 of the Stockholm Declaration of

1972, to which the United States is a signatory. This principle states that nations have "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." Amlon also

referred to a black-letter provision of Restatement (Third) of Foreign Relations, which states that

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.

But, said the court, "these invocations of international law do not establish a violation of such law

under the Alien Tort Statute." The court cited Filartiga v. Pena-Irala for the proposition that

only where the nations of the world have demonstrated that the wrong is of mutual and not

merely several, concern, by means of express international accords, that a wrong generally

recognized becomes an international law violation within the meaning of the statute.

The court then cited a later decision, Zapata v. Quinn, which distinguishes Filartiga, for the

holding that the Alien Tort Statute "applies only to shockingly egregious violations of universally

recognized principles of international law." In the court's view, neither the Stockholm Declaration

nor the Restatement (Third) of Foreign Relations states "universally recognized principles"; the

Stockholm Principles "do not set forth any specific proscriptions, but rather refer only in a general

sense" to extraterritorial environmental responsibilities; the Restatement represents "[a]t most . . .

the existing U.S. view of the law of nations regarding global environmental protection."

Once again a strong redolence of disingenuousness arises. "Universally recognized principles"

are, almost by definition, not specific; they are general rules, to be applied as circumstances which

are often unforeseen may dictate. An "existing U.S. view of the law of nations" would be one on

which U.S. courts, at least, would be entitled to rely. Similarly, on comparison of the facts of

Filartiga and Zapata, it is outrageous to read one as qualifying the other. In Filartiga, the Second

Circuit accepted jurisdiction in a wrongful death suit brought by a Paraguayan father and daughter

against another Paraguayan citizen for the torture and death of a son and brother; in Zapata, a

Mexican citizen and resident who had won a lottery prize in New York sued to have the prize paid

to her in a lump sum instead of in installments. The holding in Zapata was based not on the

inapplicability of the Alien Tort Statute, but on the frivolousness of the claim. The facts as stated

in Amlon lie somewhere on a continuum between the utter tragedy of Filartiga and the utter frivolity

of Zapata; and the court's recitation of language abdicates the judicial task of fixing the point on that

continuum at which a violation of international law may be held to exist.

Admittedly, the Filartiga court itself emphasized that "[t]he requirement that a rule command the

'general assent of civilized nations' is a stringent one." The court referred to Cuba v. Sabbatino,

in which the Supreme Court declined to apply international law to Cuban expropriation of the assets

of a foreign corporation, noting that real differences existed among nations as to the rightfulness of

such expropriations. In contrast, the Filartiga court could cite numerous treaties and accords to

demonstrate that the prohibition of torture today is unanimous in principle though often violated in

practice. The fact that the prohibition is often violated does not affect its universality.

The judicial inquiry in Amlon might, then, have focused on the question of the degree to which

the condemnation of environmental offenses is universal. Such an inquiry would have had to take

into account the well-known friction between "North" and "South" on environmental matters, but

also the existence of numerous accords aimed at regulating transboundary pollution. Once the

universality of the concern inspired by environmental pollution is demonstrated, the fact that

pollution often occurs would not be a bar to the enforcement of basic environmental principles where

egregious facts can be stated, as in Amlon they arguably were.

The Filartiga court makes clear that the application of international law in the courts of the

several nations is not a novelty. Indeed, such application may have been more accepted at the time

of the signing of the Constitution than it is at present.

The Alien Tort Statute itself, though its present form dates from 1948, goes back in substance to an

enactment of the First Congress. Early Supreme Court cases cited a British decision, Mostyn v.

Fabrigas, for the proposition that

[If] A becomes indebted to B, or commits a tort upon his person or upon his personal

property in Paris, an action in either case may be maintained against A in England,

if he is there found.

Recalling that Mostyn was freshly decided when the Constitution was signed, the Filartiga court

went on to consider the constitutionality of the Alien Tort Statute:

The law of nations forms an integral part of the common law, and a review of the

history surrounding the adoption of the Constitution demonstrates that it became a

part of the common law of the United States upon the adoption of the Constitution.

Therefore, the enactment of the Alien Tort Statute was authorized by Article III.

The Filartiga court also cited two cases which the Supreme Court decided directly on the basis

of international law, and which it is worthwhile to examine here. In United States v. Smith, a man

who had been sentenced to death for piracy appealed his conviction, arguing that the statute which

authorized the death penalty for any person who "shall, upon the high seas, commit the crime of

piracy, as defined by the law of nations" was unconstitutional because it did not "define" the crime

of piracy. The Supreme Court held that international law, "which is part of the common law,"

defines piracy "with reasonable certainty." The Court went on to state:

(T)he general practice of all nations in punishing all persons, whether natives or foreigners,

who have committed this offence against any persons whatsoever, with whom they are in

amity, is a conclusive proof that the offence is supposed to depend, not upon the particular

provisions of any municipal code, but upon the law of nations, both for its definition and

punishment.

Hence the statute was sufficiently clear to support the death penalty.

In the second case to which the Filartiga court refers, The Paquete Habana, the Supreme

Court consulted international precedent and legal scholarship in deciding that an unarmed fishing

vessel had unlawfully been made a prize of war. "International law," the court stated, "is part of our

law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction."

In language quoted by the Filartiga court, the Habana court stated that

where there is no treaty, and no controlling executive or legislative act or judicial decision,

resort must be had to the customs and usages of civilized nations; and, as evidence of these,

to the works of jurists and commentators, who by years of research and experience, have

made themselves peculiarly well acquainted with the subject of which they treat. Such works

are resorted to by judicial tribunals, not for the speculations of their authors concerning what

the law ought to be, but for trustworthy evidence of what the law really is.

Had the Amlon court chosen to recall this language, it would not have had to dismiss the Restatement

(Third) of Foreign Relations as the basis for a ruling.

For good measure, the Filartiga court quoted a British opinion from 1805 which stated:

In the first place it is to be recollected, that this is a Court of the Law of Nations,

though sitting here under the authority of the King of Great Britain. It belongs to

other nations as well as to our own; and what foreigners have a right to demand from

it, is the administration of the law of nations, simply.

The Amlon court could thus conceivably have decided the case in this spirit. At the same time, it is

fair to recall that as pointed out in a later decision, the Alien Tort Statute has been successfully

invoked as grounds for jurisdiction only three times in its long history.

The authority of international law in United States courts has always been subordinate to that of

United States statutory law; but in two classic cases, the courts applied a presumption that the two

do not conflict. In The Charming Betsy, decided in 1800, the Supreme Court stated: "(A)n act of

congress ought never to be construed to violate the law of nations if any other possible construction

remains." In The Over the Top, decided in 1925, the District Court of Connecticut stated

emphatically: "International practice is law only in so far as we adopt it, and like all common or

statute law it bends to the will of Congress." Thus, "the congress may, in disregard of the law of

nations, prohibit acts by foreign nationals not committed within our domain." However, as in The

Charming Betsy, the court stated that a congressional act is presumed to be in accordance with the

principles of international law, since the court may "assume that such principles were on the national

conscience and that the congressional act did not deliberately intend to infringe them."

The fact that in The Over the Top this reasoning supported a decision not to enforce a U.S. law

outside U.S. borders may serve as a reminder that the respect for international law is a two-edged

sword; its effect depends on the sense in which international law is construed. The presumption

against extraterritoriality which has become so formidable a barrier to the judicial protection of U.S.

workers abroad and of the global environment draws its justification, as in NRDC, from the

international principle of comity and the view of international law as a set of rules for the interaction

of competing nations. To this presumption against extraterritoriality, the present discussion has

opposed the principles of nationality and universality, as well as the as-yet-uncodified principle of

"intergenerational equity." These principles presume a community of nations, each of which is

responsible for regulating the conduct of its own nationals and for enforcing norms which all have

acknowledged. The competitive and cooperative visions of the law are in tension on both the

national and the international level.

However, the codification of standards at the international level must inevitably tend to reenforce

a cooperative vision, by the very fact that it creates a wider context against which the individual act

must be judged, and places in relation to one another principles and values which otherwise would

not be communicated but simply acted upon or ignored, within the several nations, behind the screen

of "comity." If comity rather than community were the sole reality of international life, there would

be relatively little to discuss. The following section will examine and attempt to evaluate some of

the results of this discussion so far.

 

V. The Codemaking Process and Its Discontents

 

As already noted, standards can be codified on the international level in a number of different

ways.

International efforts at cooperation on environmental issues have already generated a host of

treaties and conventions, each of which attempts to set norms for some area of international law.

Examples in the field of environmental law include the Long Range Air Pollution Convention, the

Convention on International Trade in Endangered Species, the World Heritage Convention, the

Convention for the Protection of Wetlands, the Migratory Bird Treaty, and the Conventions on

Biodiversity and Climate Change signed at UNCED. Treaties may be either self-executing or non-

self-executing. Under Article VI of the U.S. Constitution, a self-executing treaty is the law of the

land, on a par with other Congressional legislation; a non-self-enforcing treaty requires implementing

legislation to render it binding, but a court may nonetheless rely on it.

Such treaties and conventions could conceivably lead to the precipitation of international

standards. One critic of U.S. v. Mitchell has suggested that the international treaty regime be

recognized in a new rule of statutory interpretation, whereby the presumption against

extraterritoriality would not apply if an international treaty protecting the same interest had been

passed by Congress and even if the treaty was not self-executing. Thus, in this view, the court in

interpreting the Marine Mammal Protection Act should have taken into account the existence of five

treaties protecting the same species as the Act. Similarly, the Filartiga court stated that the U.N.

Charter, while "not . . . wholly self-executing," nevertheless states a principle that "has become part

of customary international law" and can thus be relied on by the courts.

On the other hand, as the controversy over GATT has recently made clear, the treaty-making

process also carries with it certain dangers for democratic and environmental values. While under

Article II, Section 2 a treaty requires the "advice and consent" of the Senate in order to become the

law of the land, it is less subject to domestic political debate than other legislation. The "fast track"

status accorded to GATT and the proposed trade agreement with Mexico arguably circumvents

the requirement of "advice."

Distinct from the treaty-making process are efforts made by various groups at codifying

international standards for conduct affecting the environment. This section will discuss four such

attempts: Part VI of Restatement (Third) of Foreign Relations; the environmental sections of the

Guidelines for Multinational Enterprises issued by the Organization for Economic Cooperation and

Development; the draft code of conduct published by the United Nations Center on Transnational

Corporations; and the project of an "Earth Charter" which became the ambiguous "Rio Declaration"

passed at UNCED in June, 1992.

None of these codes or attempts at codification was designed to be binding; however, as one

commentator observes, "[a] code's non-binding quality may be ephemeral," because of its

contribution to the consensus which is the basis for customary international law. As another

commentator has observed, common law courts can rely on anything they deem "relevant as a source

of law or the interpretation of law." The use of such codes by the courts is particularly plausible

where the basic law is the tort standard of due care, which can be fleshed out by whatever measures

may be held to represent the views of the community. Indeed, Part VI of the Restatement (Third) of

Foreign Relations is an integral part of a text whose older parts are frequently cited by United States

courts as persuasive authority though, as noted supra, the Amlon court gave short shrift to an attempt

to use one provision of part VI in this manner.

 

A. Environmental Law in the Restatement (Third) of Foreign Relations

 

In the Introductory Note to Part VI, "The Law of the Environment," the reporter of the

Restatement (Third) of Foreign Relations states that the principles incorporated in the text are

"rooted in customary international law," which in turn is based on "the responsibility of a state for

injuries caused to another state or to its property, or to persons within another state's territory or their

property." This is in essence a nuisance theory.

Part VI itself contains three sections. Sec. 601 is entitled "State Obligations with Respect to

Environment of Other States and the Common Environment": Sec. 602, "Remedies for Violation of

Environmental Obligations; and sec. 603, "State Responsibility for Marine Pollution."

The gist of sec. 601 is that a state is obligated to take such measures as are necessary and

"practical under the circumstances" to ensure that activities carried out within its jurisdiction

"conform to generally accepted international standards" for prevention of "significant"

environmental damage beyond the area of its control. This, again, might be paraphrased as a duty

to take due care. For any breach of this duty, a state is responsible to other states or to persons

injured by the breach. Comment b explains that "generally accepted international rules and

standards" includes

both general rules of customary international law . . . and those derived from international

conventions, and from standards adopted by international organizations pursuant to such

conventions, that deal with a specific subject, such as oil pollution or radioactive waste.

For the definition of "activities within its jurisdiction," Comment b refers to secs. 402-403, which

deal with extraterritorial jurisdiction and incorporate the classic principles discussed in section III,

supra. Thus, although the Restatement contains no section on extraterritorial jurisdiction in

environmental matters which would correspond to the sections on extraterritorial jurisdiction with

respect to antitrust and securities violations, the Restatement does recognize principles of

extraterritorial jurisdiction of environmental law.

Sec. 601, and sec. 603 which basically restates the same principles with respect to the specific

problem of marine pollution, both impose their prescriptions on the state, rather than on the private

persons who in many cases may be responsible for environmental damage. Sec. 602(1) likewise

speaks of the remedies a state responsible for pollution must afford "another state.

However, under sec. 602(2), the provision invoked by the Amlon plaintiff, a state where pollution

originated is also obligated to accord "significant[ly]" injured private parties "access to the same

judicial or administrative remedies as are available in similar circumstances to persons within the

state." This provision recognizes the principle of global fairness discussed supra; at the same time,

it falls far short of giving trees standing, or recognizing a fundamental right of any inhabitant of

Earth to sue on behalf of the environment.

The "statist" emphasis of Part VI has inspired one stinging critique. The tone of the Part, writes

David Caron, is "that of a government legal advisor concerned with a State's rights and duties in the

event of significant transfrontier pollution." In Caron's view, the emphasis on the state's

responsibility for transfrontier pollution is inappropriate in view of the fact that many international

environmental conventions channel such obligations toward private parties. The "hope of

international law" is the "substantive transnational law created by treaties and conventions," rather

than "the exceedingly remote chance that a state would be held internationally responsible for failing

to adequately legislate and enforce." Many of the environmental conventions, Caron points out,

are not mentioned in the Restatement, far less analyzed. While admitting that an adequate

restatement of environmental law, which would have to include the conventional law, would not

only be "difficult to produce but very lengthy," Caron finds Part VI remarkably thin in

substance.

While fundamentally directed toward the "conservatism" of the Restatement, Caron's critique

points to a task that does not seem as yet to have been undertaken: the collation of all the various

conventions and treaties, so as to produce a more detailed statement of principles for conduct

affecting the world environment. Such a statement would be a true "restatement of international

law" rather than a "restatement of foreign relations law of the United States."

In defense of the Restatement's approach, it could be argued that each individual judgment in

environmental cases requires a balancing of many factors, so that at the level of abstraction

represented by the black-letter provisions in all parts of the Restatement, the tort theory of a "duty

to take due care" may be almost the only discernible overarching principle. On the other hand, it

could be countered that the "duty to take due care," as a community standard, needs to be fleshed out

with reference to what the community has found adequate in similar situations.

 

B. The OECD Guidelines for Multinational Enterprises and the UN Draft Code of Conduct for

Transnational Scholars

 

Whereas the Restatement (Third) of Foreign Relations represents the consensus of a body of legal

scholars and directs itself to the government of the United States, the OECD Guidelines and the

UN Draft Code of Conduct for Transnational Corporations are products of international

negotiation, addressed to the community of multinational corporations. All three, however, have in

common a high degree of generality; they do not proceed very far beyond the enunciation of the tort

standard.

The Organization for Economic Cooperation and Development is an intergovernmental

organization to which the United States belongs, although the United States Senate, in ratifying the

OECD Convention, stipulated that decisions of the OECD Executive would not be binding on the

United States without the latter's consent. The OECD Guidelines for Multinational Enterprises,

first published in 1976, were revised in 1979 and "clarified" with respect to the environment in

1985.

The Guidelines, as part of a voluntary regulatory framework, are implemented not by adjudication

but by a form of "consultation" which aims at avoiding the appearance of a "dispute settlement

procedure." This procedure, carried out by the "Committee on International Investment and

Multinational Enterprises (CIME), may be initiated by the OECD itself or a member state. In this

procedure the multinational enterprise is given the opportunity to express its views, after which,

without reaching a conclusion on the conduct of the individual enterprise, the OECD may publish

"clarifications" on "issues" arising under the guidelines, using the facts of specific cases as

"illustrations." The Guidelines are

recommendations jointly addressed by the OECD governments to multinational enterprises

operating in their territories. They represent the collective expectations of these governments

concerning the behavior and activities of multinational enterprises.

In the pre-1985 body of the Guidelines, the environmental problem was explicitly referred to only

once: in paragraph 2 of the General Policies Chapter which states that multinational enterprises

should "give due consideration to . . . the protection of environment and consumer interests." The

1985 "clarification" expanded this as follows:

[E]nterprises, whether they are domestic or multinational, should, within the framework of

laws, regulations and administrative practices in each of the countries in which they operate,

take due account of the need to protect the environment and to avoid creating

environmentally-related health problems.

This, again, is the tort standard, which CIME then interpreted as meaning that enterprises should in

particular

 

a) assess and take into account in decision-making the foreseeable consequences of their

activities which could significantly affect the environment;

b) cooperate with competent authorities, inter alia, by providing adequate and timely

information regarding the potential impacts on the environment and on environmentally

related health aspects of all their activities and by providing the relevant expertise available

in the enterprise as a whole

c) take appropriate measures in their operations to minimize the risk of accidents and damage

to the environment, and to co-operate in mitigating adverse environmental effects, in

particular:

i) by selecting and adopting appropriate technologies and practices compatible with

those objectives,

ii) by implementing education and training programmes for their employees,

iii) by preparing contingency plans, and

iv) by enabling their component entities to be adequately equipped, especially by

providing them with adequate knowledge and assistance.

These provisions appear to reflect the environmental experience of the multinational; for instance,

the last provision may have been formulated with some case in mind like the Bhopal disaster, where

a U.S.-based multinational may have transmitted technology to an Indian subsidiary without ensuring

that the latter's personnel were adequately trained.

The provisions of the UN Draft Code of Conduct for Transnational Corporations are even less

specific. As set forth in a version published by the UN in 1990 in a pamphlet entitled "The New

Code Environment," the three sections of the part entitled "Environmental Protection" state in

essence that transnational corporations "shall" do the following: 1) obey the environmental laws of

the countries in which they operate, and exercise "due regard to relevant international standards"

(par. 43); and 2) supply the governments of the countries in which they operate with information on

the characteristics of their products, processes and services, any dangers they may pose to the

environment, the measures and costs necessary to avoid or mitigate their harmful effects, and any

restrictions that have been imposed on them in other countries (par. 44). The provisions state that

the transnational corporations "should" a) take adequate steps to protect the environment and to

rehabilitate it where damaged (par. 43) and b) cooperate with governments of the countries where

they operate and with international organizations in the effort to develop international environmental

standards (par. 45).

Since, like the OECD Guidelines, the draft code could command only voluntary compliance, the

difference between "should" and "shall" is elusive, underscoring the extreme generality and

weakness of the provisions. The one provision absent from the OECD Guidelines and present in the

UN draft code is the admonition to operate with "due regard to relevant international standards" and

to inform the governments of the countries where they operate of regulations imposed in other

countries.

The draft code also contains prescriptions for the "Treatment of Transnational Corporations",

including, inter alia: "58. An entity of a transnational corporation is subject to the jurisdiction of the

country in which it operates." Under this code, then, neither extraterritorial jurisdiction nor

"piercing the multinational corporate veil" is provided for.

Of greater interest than the draft code itself, perhaps, is the introduction accompanying the code,

which charts the history of the undertaking, as one subtitle puts it, "From Origins to Impasse."

This thoughtful and relatively-inaccessible essay is worth summarizing here for the light which it

sheds on some of the discontents of the codemaking process, and on the deeper issues of

international accountability.

According to the unidentified author of the introduction,

the attempt to draft a code of conduct began in the mid-1970's in response to friction between

developing nations who perceived a new form of colonialism, and multinational corporations

disturbed at expropriations by host countries. Since the inception of the project, however, the

initial configuration has shifted. Due to the concessions that they have succeeded in exacting from

the transnational corporations (TNCs), many host nations no longer see themselves as victims of

colonization by a corporations based in more developed countries. Instead, on some issues the TNC

is now ranged with the host nation against the home nation. Moreover, the host country now aligned

with the TNC against the home country may be a developed or a developing nation. The

phenomenon of "job loss through runaway plants" exemplifies this trend.

A second general change that has complicated the problem of regulation has occurred in the

structure of the TNCs themselves, due to the increasingly fluid nature of corporate enterprise.

According to the author of the introduction, the image of the TNCs as "centrally controlled, unitary

enterprises that internally integrate major business functions among globally scattered

subsidiaries" is no longer universally applicable. Instead most TNCs

face increased cost, technology and marketing pressures that force them into intercorporate

alliances, externalizing growing segments of their business process. These TNCs exercise

less direct central control than in the past. . . . The picture is complicated further by the

temporary nature of many corporate tie-ins, reflecting the need for global TNCs to maintain

maximum flexibility in a dynamic and competitive environment that is heavily influenced

by rapid technological change.

As a result, "the locus of effective responsibility for, or effective control over, many important

international business operations is becoming more difficult to ascertain." Among other results,

"[h]ome governments, most notably the United States, may now be less successful than in the past

in unilaterally applying extraterritorial controls on TNCs."

In the light of these statements, the draft code's rejection of extraterritoriality appears as a

capitulation to an international commercial process that is less and less subject to control. The

author warns:

[N]ewly evolving transnational business arrangements appear to place a single nation's

sovereignty more effectively at bay than did the unitary enterprises that existed when TNC

studies first emerged. Elements of sovereignty are not being passed to some new

international actor, however, but rather forfeited to a transnational economic process that

needs a similar level of transnational political guidance if public interests are to be served

effectively.

Yet how "transnational political guidance" could be more effective than national extraterritorial

control in imposing responsibility where the centers of responsibility can no longer be located, is not

immediately clear.

The answer appears to be that the author of the Introduction no longer thinks in terms of imposing

responsibility. Rather, the author envisages "a shift of attention" that could "make possible

cooperative initiatives to encourage and guide future business relationships." In this process, "the

code document may, in fact, be less important than the follow-up process, which can provide a

rationale for compromise on formulations and the motivation to break through the existing

stalemate." Rather than think in terms of enforcement, negotiators could look forward to "the

identification and resolution of common problems." In this context, "flexible 'soft law'

arrangements to facilitate cooperation" are preferable to attempts at formulating "hard law"

agreements whose "carefully crafted requirements are soon circumvented or superseded by the

dynamic developments occurring in international commerce."

The gist of the draft code's approach, then, is the abandonment of "hard," or confrontational law

in favor of "soft" law which will promote "cooperation" among entities which cannot be held to

account as their very identity is no longer certain.

This result is profoundly disquieting. It is not that the usefulness of dialogue is to be discounted,

particularly in the planning stages. Thus the European Commissions's recently-unveiled

environmental action plan, which aims at "strengthening dialogue at an early stage of proposals"

rather than "trying to protect the environment almost exclusively through legislation," may represent

a beneficial approach. Yet law is only law if it contains, for use when dialogue breaks down, a

possibility of confrontation and enforcement. An actor whom (or a process which) the law cannot

confront is essentially above the law. There is something sinister in the thought of human

governments consciously yielding control to an anonymous "process."

The OECD Guidelines and the UN draft code are far from being the only attempts at codification

that address the new technological and economic realities. One commentator has written ironically

of "clouds of codes." According to the author of the above-quoted Introduction, the trend toward

"soft law" in these codes is general. If the OECD guidelines and the UN draft code are indeed

representative, they exemplify the limitations of a codemaking process which appears to consist

largely in negotiations with those to be regulated.

These limitations might be partially overcome, however, if scholars not directly involved in the

codemaking negotiations were to collate the various codes, combining the most rigorous and specific

provisions. Such a compilation would take into account not only the broad general codes such as

those proposed by the OECD and the UNCTC, but also those directed at specific areas of enterprise.

This undertaking might yield a more detailed set of principles, a "supercode," which while subject

to constant revision might be a better instrument of control than either broad declarations of

principle, or scattered specialized codes. Caron, in urging the collation of the various treaties and

conventions, appears to advocate a similar undertaking.

Again, as in the discussion supra of the "plain statement" rule, this inquiry touches on the theme

of the search for meaning or its abandonment. The suggested collation and integration of

aspirational standards would be a search for coherency of principle and meaning. As such, it would

be one antidote to that yielding to impersonal and irresponsible "process" which is so deeply

disturbing in the UNCTC approach.

The danger which the UNCTC approach embodies may be endemic to technological culture

as a whole: having once begun with the modest attempts of one primate species to gain greater

control over its environment, technology seems to have acquired a momentum that is partly its own

and partly that of intensifying competitive (military and market) pressures. The uncritical reliance

on technology, the unchecked growth of corporate power and governmental size, the disintegration

of community and the endangerment of the environment may be aspects of a single process,

interrelated in ways that are only beginning to be understood, and perhaps rooted in the

desacralization of the physical universe. As recent commentators have pointed out, the ultimate

end of this process may be the replacement of both nature and human consciousness by an entirely

artificial creation. If so, however, then in the search for a global coherency of environmental law

the ecological and humanistic struggles coincide.

 

C. The Goal of an "Earth Charter"

 

In conclusion of this part of the Note, it may be instructive to glance at the project of an "Earth

Charter" which arose in connection with the "Earth Summit" (UNCED) and which became the

ambiguous "Rio Declaration." The "Rio Declaration" must be read together with the mammoth

"Agenda 21" which was passed at the same conference, and which cannot be adequately evaluated

in the present space. Since they are products of the same conference, however, the shorter document

may indicate the orientation of the longer.

The idea of an environmental rights charter, which later came to be called the Earth Charter, was

presented by Norwegian and Dutch delegates at the meeting of the United Nations Economic

Commission for Europe in Helsinki in February, 1991, where participating nations were preparing

conventions on transboundary water pollution and industrial accidents.

The Dutch-Norwegian proposal "tried to define the rights of individuals to hold sources of

pollution liable for past, present, and future damages." This proposal was criticized as vague. An

additional meeting was scheduled to work on the charter in preparation for UNCED; however,

delegates from the U.S. and Britain, among others, "expressed doubt that there would be a suitable

document that could mesh with the legal systems of either nation."

Nevertheless, at a preliminary conference held in Geneva in late summer of 1991, the delegates

decided, after intense debate, to make the "Earth Charter" a goal of UNCED. In a brief note that

reads like a microcosm of world politics, one reporter summarized this debate as follows:

The United States repeatedly emphasized that the Charter should note the need for market

mechanisms to attain sustainable development. China stressed that the Earth Charter should

have a strong moral content and should foster a common understanding among the

international community on environment and development. Singapore highlighted the

interrelationship of poverty and environmental degradation. Nigeria, speaking on behalf of

the Sudano-Sahelian countries, brought up the need for fair and equitable income

distribution. Brazil stated that the use of such language as "global commons" in the debate

on the Earth Charter tends to compromise the primacy of national sovereignty over resources.

The government of Malaysia suggested that the term "Earth Charter" was an environment-

bound term and does not reflect UNCED's central development component. Instead it

recommended that it be called the "Rio de Janeiro Declaration on Environment and

Development," a change that is likely to stick. Even though this new term does not have the

public relations impact the UNCED secretariat intended with "Earth Charter," it is more

descriptive and certainly less grandiose.

To read this account together with "The New Code Environment" is to become aware of a vast

gulf between the general public concern to which the symbolic title "Earth Charter" appealed, and

the complex, largely unmonitored processes taking place in the social, economic and natural

environment. Against the depicted background of self-serving negotiations, that title would have

been an empty gesture.

The title "Earth Charter" would in any case have been contradicted by the first "Principle"

of the Rio Declaration, which reads: "Human beings are at the centre of concerns for sustainable

development. They are entitled to a healthy and productive life in harmony with nature." The first

sentence seems intended to clarify that the document is not meant to give standing to trees, or rights

to the Earth itself. Indeed, neither the word "earth" nor the word "environment" appears in this

principle (though the Preamble acknowledges "the integral and interdependent nature of the Earth,

our home"). Instead, the central concern is identified as "sustainable development," which could

quite well mean, not the preservation of nature but its replacement by a self-sustaining artificial

creation.

The second principle repeats Principle 21 of the Stockholm Declaration verbatim. In its

new position of prominence it arguably gives the document what Caron criticized in the Restatement

(Third) of Foreign Relations as a "statist" approach, maintaining, in despite of the preamble, the

fiction of a divisible biosphere:

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.

The third principle echoes Weiss's principle of "intergenerational equity," though weakened

by proximity with the second principle which appears to deny the notion of a global "common

patrimony": "The right to development must be fulfilled so as to equitably meet developmental and

environmental needs of present and future generations." The fact that "developmental" precedes

"environmental" in this principle is disquieting and probably not accidental in view of Principle 4,

which reads: "In order to achieve sustainable development, environmental protection shall constitute

an integral part of the development process and cannot be considered in isolation from it." It is not

development which must integrate itself into environmental protection, but vice versa. And

Principle 25 reaffirms: "Peace, development and environmental protection are interdependent and

indivisible." George Orwell might have appreciated this sentence, which resolves the tension

between the title concepts "environment" and "development" by declaring that the two, with the

likewise questionable addition of a third, are one.

Between Principles 4 and 25, various goals are stated. Some, like the eradication of poverty

(Principle 5), were already at least implicit in the Stockholm Declaration (Principles 1, 8). Principle

7 demands that states "cooperate in a spirit of global partnership to conserve, protect and restore the

health and integrity of the Earth's ecosystem." This is the one occurrence of "ecological" language

within the Rio declaration itself; such language occurred more frequently in the Stcokholm

Declaration (Principles 2, 3, 4, 6); moreover, within Principle 7 of the Rio Declaration, the focus is

arguably not on protecting the environment but on brokering the tensions between the developed and

developing nations (or their governments) which are also addressed in Principles 6 and 11

("Standards applied by some countries may be inappropriate and of unwarranted economic and social

cost to other countries, in particular developing countries"). Principle 11 contains the assumption

that projects which damage the environments of developing countries benefit their peoples, a

proposition questionable to say the least. Other Principles address concerns that have grown in

visibility since 1972; thus Principle 10 speaks of the right of citizens to be informed and participate

in decisions on environmental matters. In Principle 8 ("To achieve sustainable development and a

higher quality of life for all people, States should reduce and eliminate unsustainable patterns of

production and consumption and promote appropriate demographic policies"), a veiled exhortation

to the poorer nations to check population growth (cf. Stockholm declaration, Principle 16) is fairly

balanced with an admonition to the richer nations to check consumption. Principle 13 demand, in

the spirit of Restatement (Third) of Foreign Relations, Part VI, sec. 602(2), that states cooperate to

"develop further international law regarding liability and compensation for adverse effects of

environmental damage caused by activities within their jurisdiction or control to areas beyond their

jurisdiction." Principle 14 addresses the maquiladora phenomenon, exhorting states to"effectively

cooperate to discourage or prevent the relocation and transfer to other States of any activities and

substances that cause severe environmental degradation or are found to be harmful to human health."

Principle 15 urges a "precautionary" approach to environmental protection: "Where there are threats

of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for

postponing cost-effective measures to prevent environmental degradation." Principle 16 enshrines

the "polluter pays" principle, though with one caveat:

National authorities should endeavour to promote the internalization of

environmental costs and the use of economic instruments, taking into account the approach

that the polluter should, in principle, bear the cost of pollution, with due regard to the public

interest and without distorting international trade and investment.

The last phrase states the one value which was really sacrosanct at Rio. Instead of granting rights

to the Earth, the delegates granted the international commercial "process" the right to proceed by its

own laws, unchecked by ecological and humanitarian considerations, which are to be taken "into

account" only to the extent that they do not interfere with that process. The conclusive proof of this

is Principle 12:

States should cooperate to promote a supportive and open international economic

system that would lead to economic growth and sustainable development in all countries, to

better address the problems of environmental degradation. Trade policy measures for

environmental purposes should not constitute a means of arbitrary or unjustifiable

discrimination or a disguised restriction on international trade. Unilateral actions to deal

with environmental challenges outside the jurisdiction of the importing country should be

avoided. Environmental measures addressing transboundary or global environmental

problems should, as far as possible, be based on an international consensus.

Between the lines, this Principle affirms the GATT ruling, discussed supra, against the U.S. ban on

the importation of tuna caught without adequate dolphin protection. In the light of this under-the-

table ruling, it is difficult not to perceive the entire Declaration as a maneuver, like GATT's spectral

"revival" of its never-incarnate "working group on trade and the environment," designed to defuse

concern rather than give it effect.

In this principle extraterritoriality figures, by implication, as a violation of this global

concordat in which environmental and economic interests are so seamlessly merged. In this

depiction, the process by which international law has historically formed is distorted. Unilateral

initiative is portrayed as a violation of international consensus, despite the historical reality that the

second can develop out of the first. Indeed, it is at least arguable that customary international law

arises out of a global awareness for its necessity, which finds expression not primarily in

international negotiations, but in unilateral actions which the international community perceives to

be appropriate and emulates. In the words of William Greider:

[There are] many contradictions created by the global system that only nationalism can

reconcile. American law cannot police the world and need not try, but it can police what is

American. To take the starkest example, no U.S. company should be treated as a lawful

entity, entitled to all the usual privileges, if its production is found to exploit child labor in

other countries. The same approach applies across the range of corporate behavior, from

environmental degradation to ignoring tax laws.

The basis of extraterritoriality in a corporate context is not an attempt to "police the world," but

rather an attempt to make certain that the state does not, through its grant of corporate privileges,

further purposes contrary to the basic principles of society.

It is hoped that the above investigations have established that the procedural goal of

extraterritoriality, in a proper context, is inseparable from the substantive goal of environmental

preservation. The demand, as voiced by the above-quoted paragraph is not a simple one. To explore

its implications, to attempt to determine whether it is viable in the face of the changes noted by the

author of "The New Code Environment," would lead well beyond the compass of this Note.

However, if, as suggested here, the project of extraterritoriality is linked with that of creating

coherent global norms, then the modification of corporate law which Greider proposes is arguably

part of that project; it sketches a desideratum which needs to be articulated and linked with other

desiderata, in a constructive process which, while giving due weight to all legitimate needs, would

be determined by consequentiality rather than expediency.

The title "Earth Charter" is still free. It is still possible to envision a code that would bear

out the promise of that title. Such a code would represent a detailed, reasoned and bona fide

consideration of human needs in the light of the overarching need to respect and restore the integrity

of Earth's ecosystem. Like the appropriate title of any well-written book, the phrase "Earth Charter"

with its symbolic luminousness would culminate a process in which meaning and coherency would

have been sought and created. Such a document could legitimately command the attention of

individuals and societies concerned for the global future, and courts so disposed might well look to

it as a statement "not of . . . what the law ought to be, but . . . of what the law really is."

 

VI. The "Ombudsmen for Future Generations": Bridge Across the Information Gap?

Where action is not profitable, gather information.

-- Ursula Leguin

The visionary goal of a bona fide "Earth Charter," if realized, would not solve once and for all

the problem of the "public interest statute." This problem would arise each time the principles of

the charter had to be applied to an unforeseen situation; and, as Turley points out, it is essentially the

problem of the cost of information to the public. Moreover, the "public" includes the judiciary,

who, like the public, are for the most part not specialists. Speculation inevitably turns to the question

of how, if they were to accept this task, they would arrive at a decision that represented not only legal

correctness, but environmental and social wisdom.

As a possible answer to this question, and a way of looking at some of the concerns raised in the

main body of this Note from a different angle, this section will examine the suggestion of

"ombudsmen for future generations" made by Weiss. In Weiss's vision, the function of these

"ombudsmen or commissioners for future generations" or "Planetary Rights Commissioners"

would be to receive and investigate complaints about violations of "intergenerational equity,"

designed as the obligation to pass on the environmental and cultural legacy to future generations.

Weiss does not extensively contemplate the use of extraterritorial jurisdiction; she writes that

"enforcement can take place through international tribunals, regional tribunals, or, in appropriate

circumstances, national judicial or administrative proceedings." Elsewhere, however, she notes

that on the international level, "concerns about national sovereignty may limit world ombudsmen

to monitoring compliance with international agreements, investigating alleged violations, and

publicizing findings to the international community."

If able to do this, however, the "ombudsmen for future generations" would also be in a position

to make comparisons between specific actions and internationally codified standards before a court

exercising its jurisdiction extraterritorially. Thus, the global ombudsmen, as informed witnesses,

appear as possible mediators between public concern on the one hand, and the social, economic and

environmental priorities which must be balanced in every environmental decision, on the other. The

ombudsmen would not necessarily have to limit themselves to condemnation of environmentally

damaging enterprise; they might also recommend ways of mitigating any hardships caused by

environmental protection. In this way, they could assist the courts in imaginatively fashioning

remedies.

Weiss does not attempt to suggest by what process the planetary commissioners would be

appointed, or to whom they would be responsible. On the basis of the decisions surveyed in this

Note, it is possible to question whether the function of "ombudsmen for future generations" could

be carried out through a political process whose breakdown is arguably represented by a judiciary

that appears to be growing less responsible, intellectually as well as environmentally. The demand

for "ombudsmen for future generations" engages the political process as a whole.

Weiss's book In Fairness to Future Generations does not answer the question how future

generations and the planet itself are to be represented in the political process, given that neither the

future generations nor the planet itself possesses an actual voice that could cast a vote. Still less do

they have funds with which to buy one. The foregoing exposition has, it is hoped, made clear that

under a theory of legislation and adjudication as a market, they cannot find representation in the

political process at all.

But it is also to be hoped that this exposition has made visible an alternative process: that of

creating a coherency of purpose and meaning, and of assuming responsibility. This process is

exemplified by the efforts of legal scholars, by the codemaking endeavor however truncated, and by

the advocacy of the environment in the courts. In this process the planet, its endangered species and

its unborn generations are represented. They are present in every inquiry conducted, every rule

established, every decision taken, in a manner consistent with the principles dictated by the

awareness of their needs.

The process of information-gathering and context-making is the basis of culture. In her book

Weiss contemplates, inter alia, the necessity for preserving cultures as well as ecosystems. No

less important would be the continuation of the work of culture under the conditions created by

scientific technology and a corporate economy. These conditions include informational media and

mass entertainment which are themselves dominated by the market, and which are not noted for

fostering coherency of thought.

In this situation to think is, in a manner of speaking, to act, and to act globally. In a complex

society, the organization of ideas may be a necessary prelude to political organization. The present

Note has attempted to examine extraterritorial jurisdiction, as one implement for global

environmental regulation, and to envision a context in which this implement could be used

effectively. This suggestion turned out to implicate others -- the development of an international

aspirational code, the appointment of "ombudsmen for future generations." This last suggestion led

back to the overall task of creating an environmentally responsible culture, without which all hopes

of advocacy for the future are fantasies and destined to remain such.

By clarifying the reasons why extraterritorial adjudication is desirable, and by linking

extraterritoriality with other desiderata, the analysis has hopefully contributed to the formation of

a coherent program, which is one prerequisite of a globally responsible culture. The notion of such

a culture, which appeared shadowy and unrealizable at the outset, has perhaps become, in one small

area, more concrete.

Moreover, links to further desiderata are already apparent. In the comparison between labor and

environmental cases it appeared that both labor and environmental interests are shortchanged by a

market theory of legislation and justice. This underlines the desirability of formulating some terms

on which these two interests, often set against each other in the present political context, could form

an alliance. The question may be related to the often-stated desideratum of "grass-roots

organization," or the need to find a method of information-sharing that would escape the strictures

of Turley and Olson on the superior political clout of small-group interests. Suppose, for instance,

it were formulated as a "planetary obligation," incumbent on every conscious human being, to meet

and share information with others on a non-market basis? The questions of how, when, with whom,

under what circumstances, would be matter for further reflection.

 

VII. Summary and Conclusion

 

The foregoing analysis has shown that U.S. courts, at present, are inhospitable to extraterritorial

claims.

It has also shown that within the conceptual framework of the law, the premises for extraterritorial

adjudication exist.

In international law, the principles of nationality, "subjective" and "objective" territoriality, and

universality could confer jurisdiction in appropriate cases. A principle of "intergenerational equity"

could be added, as representing realities of which Western nations have only recently become

conscious. Courts could apply the "conduct" and "effects" tests, together with the technique of

"piercing the transnational corporate veil" to reach conduct occurring beyond their borders. The

presumption against extraterritoriality could be reversed for environmental cases, particularly where

the global intent of a statute may be inferred from the existence of international treaties and

conventions protecting the same interests. The status of environmental laws as statutes in the public

interest could be confirmed, and this would mandate a liberal construction in accordance with their

public purpose. Expectations could be further clarified by an international effort at codification of

standards, which would entail collation of many now-existing codes into an "Earth Charter," which

could become part of international law. Finally, "ombudsmen for future generations" could be

appointed to assist courts in making informed decisions.

Two alternatives to extraterritoriality were briefly examined: the attempt to create world

government, and reliance on the market-inspired regional groupings that have taken shape in the past

decades. This examination revealed not only the reluctance of nations to give up their sovereignty

but, even more, the tendency of international market processes, reinforced rather than restrained by

these larger groupings, to frustrate environmental and other public purposes. This finding underlined

the need for judicial articulation of meaningful standards. It would seem vital to consider solutions

that would give society some control over the commercial-technical process, rather than allowing

that process to become the sole foundation of society.

The project of extraterritorial adjudication is fundamentally premised on a global view which

urges the creation of coherency through the recognition of a global layer of meaning in the law,

rather than the imposition of new levels of command. This project entails and furthers the

assumption of responsibility by the local actor. The fate of the living biosphere may well depend

on humans preserving and developing institutions that rely on consciousness, clearly-formulated law,

and a measure of local control; and this also implies that the planetary obligations of an "Earth

Charter" could not fall solely on governments and corporations. If humans are to preserve the

heritage of future generations, the responsibility for Earth must come home.

 

NOTES

 

 

  1. Ph.D., University ofCalifomia-Berkeley, 1973; University of Wisconsin Law School '93. I would like to thank Profs. Charles Irish and Richard Bilder for helping me to formulate the project

of this Note, and Prof. Irish for his helpful criticism of the first draft.

2. Edith Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity 2 (1989).

3. Christopher Stone, Should Trees Have Standing? 45 So. CALIF. L. REv. 450 (spring

1972).

 

4. See Note: Developments in the Law: International Environmental Law, 104 BARv. L. REv. 1484, 1489.

 

5. See Kathleen Hixson, Extraterritorial Jurisdiction under the Third Restatement of Foreign Relations Law of the United States, 12 FORDHAM INT. L.J. 127, 133, citing RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES (1988), at 3.

 

6. See V. Rock Grundman, The New Imperialism: The Extraterritorial Application of United States Law, 1400. LAW. 257 (1980).

 

7. See Note, Predictability and Comity: Toward Common Principles of Extraterritorial Jurisdiction, 98 BARv. L. REv. 1310, 1311 (1985).

 

8. Developments in the Law, supra, note 3, at 1590.

 

9.Id. at 1499.

10.Id. at 1522-1526. 11. Id. at 1553, 1561.

12. In After Rio, NEW YORK LAW JOURNAL 3 (Aug. 28, 1992), Stephen L. Kass and

Michael B. Gerrard found that "the Rio Conference proved surprisingly important, with participating states agreeing on a broad array of principles to guide further environmental and development policies, signing separate conventions on climate change and biological diversity, and agreeing on initial funding commitments to combat poverty and environmental degradation in the developing world." But see Joe Kerwin, Less than $5 Billion Pledged/or Agenda 21 Action Plan, Final Document to be Released by United Nations in September, BNA INTERNATIONAL ENVIRONMENT DAILY (July 31, 1992), available on LEXIS/NEXIS: "Although the secretarial for the United Nations Conference on Environment and Development had estimated that implementation of Agenda 21 would cost about $125 billion a year, only $4 billion to $3 billion a year in new money was pledged at the Earth Summit in Rio de Janeiro."

13. See J.H.H. Weiler, The Transformation o/Europe, 100 YALEL.J. 2403, and David Gardner, EC energy tax moves a stage closer, FINANCIAL TIMEs, Dec. 14, 1991.

14. This emphasis may be felt particularly in Jonathan Turley, When in Rome: Multinational Misconduct and the Presumption Against Extraterritoriality, 84 NORTHWESTERN U. L. REv. 598 (1990), and in Note, Constructing the State Extraterritorially: Jurisdictional Discourse, The National Interest, and Transnational Norms, 1274 BARv. L. REv. 1272.

Uneasiness with the growth of corporate power is not new; it was expressed by Judge Brandeis in 1933, in his classic dissent to Louis K. Liggett v. Lee (288 U.S. 517 (1933)):

 

Able, discerning scholars have pictured for us the economic and social results of thus removing all limitations upon the size and activities of business corporations . . . They show that size alone gives to giant corporations a social significance not attachedordinarily to smaller units of private enterprise. . . Through size, corporations . . are sometimes able to dominate the state. . . The

changes thereby wrought. . are so fundamental and far-reaching as

to lead these scholars to compare the evolving "corporate system"

with the feudal,system; and to lead other men of insight and experience to assert that this "master institution ofcivilised life" is committing it to the rule of a plutocracy.

In 1971 Raymond Vemon (SOVEREIGNTY AT BAY 5) voiced a similar anxiety when he described multinationals as

sprawling across national borders, linking the assets and activities of different national jurisdictions with an intimacy that seems to threaten the concept of the nation as an integral unit. Accordingly, they stir uneasy questions in the minds of men. Is the multinational enterprise undermining the capacity of nations to work for the welfare of their people?

And in his recent book WHO WILL TELL THE PEOPLE (1992), William Greider expresses similar misgivings about the regional trade groupings.

 

15. See Joel P. Trachtman, GATT Dispute Settlement Panel, 86 A.J.LL. 142 (1991). After the controversial decision, Mexico agreed not to present the panel decision to the Council of GATT for adoption for an indefinite period, evidently in order to "limit the ability of environmentalists to use this episode to show how free trade could reduce the effectiveness of U.S. environmental policy." Id. at 143 n. 2. On the ability of international agreements to undermine domestic environmental and labor law, see Greider, supra note 14, at 388-395.

16. Id at 143; and see also GATT Revives Dormant Environment Panel to Ensure Commerce Views Heard at UNCED, BNA INTERNATIONAL ENVIRONMENT DAILY (Nov. 5, 1991), available on LEXIS/NEXIS.

17. See Greider, supra note 14, at 385-90.

18. See Kass and Gerrard, note 10 supra.

19. See Joan Goldfarb, Extraterritorial Compliance with NEP A amid the Current Wave of

EnvironmentalAlarm, 18 ENVIRONMENTAL AFFAIRS 544 (1991): "In the 1960s, the W orId Bank funded an energy plant and a coal mine in the forests of Singrauli, India. The construction caused flooding and air pollution, and the once-fertile area will no longer support agriculture. In 1986, the W orId Bank funded the construction of a number of dams and power plants in Brazil. Currently, the W orId Bank is considering funding an iron smelter in the Amazon. The project would require burning fifty-eight thousand square miles of Amazon forests." [footnotes omitted]

20. Developments in the Law, supra, note 3, at 1605.

21. Richard Schwartz, Are the DECD and UNCTAD Codes Legally Binding?, 11 Int. Law. 589 (1990).22. New Jersey v. Delaware, 291 V.S. 363, 381 (1933), cited in Schwarz (see preceding note), at 535.

23. See Daniel B. Magraw, Introduction: United Nations ECOSOC Draft Code of Conduct on Transnational Corporations, 1 B.D.I.E.L. 533 (1989), n. 8 and accompanying text.

 

24. Jonathan Turley writes: "In many ways, the extraterritoriality question is a microcosm of the institutional role of both the judiciary and the legislature in a representative system." Transnational Discrimination and the Economics of

Extraterritorial Regulation, 70 B.V.L. REv. 339, 392. Perhaps, indeed, every legal issue is a microcosm of the system; but the question of extraterritoriality, with the question that it poses of the relationship between levels of size and authority, may be microcosmic in a heightened sense.

 

25. Weiss, supra note 1, at 113, 124-126.

 

26. See Harold G. Maier, Extraterritorial Jurisdiction at a Crossroads: An Intersection Between Public and Private International Law, 76 AM. J. INT'L L. 280, 307.

27. See Hixson, supra note 5, at 131.

28. Zenith Radio Corp. v. Matsushita Elect. Indus. Co., 494 F. Supp. 1161 (1980), at 1179.

 

29. See Robert T. Jones, Extraterritoriality in u.s. Antitrust: An International 'Hot Potato,' 11 INT. LAW. 415, 419.

 

30. See Harvard Research in International Law, Jurisdiction with Respect to Crime, 29 AM. J. INT. L. SUPP. 437, 519-20 (1935).

 

31. David C. Brennan, Extraterritorial Application of Federal Wildlife Statutes: A New Rule of Statutory Interpretation, 12 CORNELLlNT. L. J. 143, 145 n. 31 (1979).

32. RESTATEMENT (3), sec. 414, comment b (1987).

33. Jones, supra, note 28, at 419-420.

 

34. Id. at 420.

 

35. See Harvard Research, supra note 29 , at 484-5.

 

36. Id. at 488.

 

37. RESTATEMENT (3), sec. 403(3), comment f.

 

38. Id., sec. 402, comment f, Reporter's note 3.

 

39. King v. Marsh, 3 Bulstr. 27 81 E.R. 23.

 

40. RESTATEMENT (3), sec. 404. The corresponding sec. 34 of RESTATEMENT (~ECOND) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES referred only to plI'acy.

The "five principles" are overlaid by other jurisdictional categories, such as "personal" and "subject-matter" jurisdiction or jurisdiction to prescribe, to adjudicate and to enforce. (RESTATEMENT (3) speaks of jurisdiction to prescribe, adjudicate and enforce but does not use the terms "subject matter jurisdiction" and "personal jurisdiction." See secs. 401-431 and sec. 401, comment c. See also Jones, supra note 21, at 422.) Generally speaking, the government of a country may have theoretical authority to legislate on a given matter, but the right to enforce depends on the presence of the person or the person's property within the territory of the nation. Id. at 424. In the case of a corporation,

jurisdiction often depends on the identification of a subsidiary in one country with a "parent" in another, through techniques of "piercing the multinational

corporate veil." See David Aronofsky, Piercing the Transnational Corporate Veil:

Trends, Developments, and the Needfor Widespread Adoption of Enterprise Analysis, 10 N.C.J. INT'L L. & COM. REG. 31 (1985). These techniques are codified in RESTATEMENT (THIRD) OF FOREIGN RELATIONS: Sec. 414 (1) asserts that a state has prescriptive jurisdiction "for limited purposes" over the foreign branches of corporations organized under its laws. If the subsidiary is incorporated under the laws of the foreign state, the home state of the "parent," according to sec. 414 (2), has a still more limited jurisdiction. Finally, according to sec. 414, comment h, a state may have prescriptive jurisdiction "for some purposes" over the foreign parent of a local subsidiary.

 

41. See Hixson, supra note 5, at 131. Traditionally, international law urges each nation not to' extend its jurisdiction into another's province unless the act it wishes to punish is contrary to the conventions of international law, or to the laws of most other nations. Abstention is often predicated on the principle of "comity" which enjoins respect for the other nation's domain. See Predictability and Comity, supra, note 6. A second abstention principle, forum non conveniens, is frequently used to decline jurisdiction, where adjudication far from the source of the dispute would entail inconvenience in gathering evidence and summoning witnesses. For example, in a notorious case where a plant belonging to a Union Carbide subsidiary in India had leaked toxic gas, killing over 2000 people, the Southern District Court of New York refused jurisdiction on grounds offorum non conveniens, citing the difficulty of obtaining access to witnesses and sources of proof. In re Union Carbide Gas Plant Disaster, 634 F.supp. 842 (S.D. New York, 1986).

 

42. See Stone, supra note 3, and JERRY MANDER, IN THE ABSENCE OF THE SACRED: THE FAILURE OF TECHNOLOGY AND THE SURVIVAL OF THE INDIAN NATIONS (1991).

 

43. Weiss, supra note 1.

 

44. However, comment b to Sec. 404, RESTATEMENT (THIRD) OF FOREIGN RELATIONS states that there is no reason why this principle could not also be invoked by terrorists' victims as a basis for tort liability.

 

45. See Goldfarb, supra note 19, at 543,591. See also Brennan, supra note 31, at 147: "Intemationallaw may evolve to the point where the taking of certain endangered species anywhere is considered a universal crime against humanity. "

46. See Weiss, supra note 1, at 2-3.

 

47. Weiss, supra note 1, at 30-33.

 

48. Weiss, supra, note 1, at 18 etpassim. Weiss points out that "Philosophers from diverse cultural traditions have recognized that we are trustees or stewards of the natural environment," and cites examples from Islam, the Judeo-Christian

tradition, and African customary law (at 18-20).

 

49 . Weiss's book is informed throughout by a sense of the complex considerations to be balanced. This sense is also implicit in the de:fmition of equity as including "equitable standards for the allocation and sharing of resources and benefits. " (Weiss, supra note 2, at 36 n. 72, citing L. HENKIN, R. PUGH, O. SCHACHTER, H. SMITH, INTERNATIONAL LAW 102 (2nd ed. 1986).

50. 260 U.S. 94 (1922). See discussion in Goldfarb, supra note 19, at 550-552.

51. Id at 98. 52.Id at 97-100.

53. Id at 97-92.

 

54. See Turley, supra note 13, and Predictability and Comity, supra note 13.

 

55. See Turley, supra, note 14; Constructing the State Extraterritorially, supra note 14; and Goldfarb, supra note 19, at 552.

56. 15 U.S.C. secs. 1-7 (1989).

57. Id.. sec. 1.

58. 213 U.S.347 (1909); Turley, supra. note 14, at 631. 59.Id at 354-55.

60. Id at 354-5.

61. Id. at 355.

62. Id.

 

63. See Zenith Radio Corp. v. Matsushita Elect. Indus. Co., 494 F. Supp. 1161, 1181 (E.D. Penn. 1980).

 

64. See infra, note 198 and accompanying text.

65.ld. at 1181-2.

66. 148 F.2d 416 (2d Cir. 1945). 67. 15 V.S.C. sees. 1,2 (1989). 68. Alcoa, 148 F.2d at 443. 69.1d. at 443.

70. ld. at 444.

71. ld.

72.549 F.2d 597 (9th Cir. 1977). 73.1d.

74.1d. at 615.

 

75. See Predictability and Comity, supra note 6, at 1323 n. 72.

 

76. 333 U.S. 795 (1948). 77.ld. at 796.

78. Id. at 817.

79. 617 F.2d 1248. 80.1d. at 1258.

81. See Predictability and Comity, supra, note 6, at 1314, nn. 24-25.

82. 15 V.S.C. sec. 78 dd(b). See Turley, supra, note 14, at 614 n. 99. 83. Turley, supra note 14, at 614 n. 99.

84.405 F. 2d 200 (2d Cir. 1968), rev'd in part en bane, 405 F. 2d 215 (2d Cir.

1968), eert. den., 395 V.S. 906 (1969).

85.1d. at 205. 86. ld. at 208.

87.468 F.2d 1326 (2d Cir. 1972). 88.1d. at 1334.

89.1d.

90. ld.

91. fd. 92. fd.

93. Id. 94.Id.

 

95. The court is unable to point to any de:fmite language mandating extraterritorial enforcement but instead argues from silence: "sec. 17(a) applied to all fraudulent offers or sales of securities in commerce or by the use of the mails -- whether the securities were registered, unregistered, or exempted, and so far as the language goes," At. 1335. "Since Congress thus meant sec. 10(b) to protect against fraud in the sale or purchase of securities whether or not these were traded on organized United states markets, we cannot perceive any reason why it should have wished to limit the protection to securities of American issuers." At 1336. The contrast with Foley, on which Maxwell attempted to rely, could not be greater. The court dismissed the relevance of Foley by pointing to sec. 17 of Restatement (2) of Foreign Relations, which dealt with prescriptive jurisdiction, although the court could not find support for its position in the black letter of the section but had to rely on a comment and two illustrations. Contrast, below, the refusal of the Amlon court to give weight to the black letter provisions of Restatement (Third) of Foreign Relations.

96. See Grundman, supra, note 6.

 

97. 15 U.S.C. sec. 15 (1976).

98. PTIA ch. 11, secs. 5(3), 6(2) (1980).

99. Treaty of Rome, March 25, 1957, in European Communications Office for Official Publications, TREATIES ESTABLISHING THE EUROPEAN COMMUNITIES; TREATIES AMENDING THESE TREATIES; DOCUMENTS CONCERNING THE ACCESSION (1973).

100. RALPH H. FOLSOM, MICHAEL WALLACE GORDON, JOHN A. SPANOGLE JR., INTERNATIONAL BUSINESS TRANSACTIONS IN A NUTSHELL 144 (1988).

101. fd. at 145-6.

 

102. See Marcus D. Williams, European Antitrust Law and its Application to American Corporations and their Subsidiaries, 9 WHITTIER L. REv. 517 (1987).

103. See Goldfarb, supra note 19, at 547,589.

 

104. Needless to say, this scheme would also entail giving citizens standing to sue on behalf of trees. As on the extraterritorial question, the present trend of D.S. jurisprudence is in the opposite direction. See infra, note 175.

 

105.336 U.S. 271 (1949).

106. Foley. at 283; 40. D.S.C. Sec. 324, 325a (1940).

107.Id at 285. 108. Id at 286.

109.Id at 296-300. 110.Id at 285-6.

111.  42 U.S.C. sec. 2000e(b).

112. 502 F. Supp. 472, 482 (D.N.J. 1980), rev'd on other grounds, 675 F.2d 562

(3rd Cir. 1982).

113. 100 F.2d 1014 (1988), affd on rehearing, 892 F.2d 1271 (5th Cir. 1990) (en banc).

i 14. EEOC Decision 85-16, Empl. Prac. Dec. (CCH), 6857 (Sept. 16, 1985).

115.Id at 1018.

 

116. See Turley, supra note 14, at 617.

 

117. 111 S. Ct. 1227.

118.Id at 1233-4.

119.Id at 1230.

120. Id. at .

121. Id at 1235.

122. Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949).

123. EEOCv. Aramco, at 1231.

124.Id at 1238 (Marshall, J., dissenting).

125. Turley, supra note 24, at 388-389.

126. Id, at 388.

 

127.Id at 359, n. 123. However, Turley feels compelled to present a lengthy argument for the inclusion of labor legislation in the category of public interest statutes (id at 366-377).

128.Id at 355. Turley bases himself here on Mancur Olson, THE LOGIC OF COLLECTIVE ACTION: PuBLIC GoODS AND THE THEORY OF GROUPS (1971).

129.Id at 385-386.

 

130. Turley, supra note 24, discusses three basic models of legislation. The first, the "public purpose" theory, based on the Madisonian model of representative government, was expounded by Hart and Sacks in the 1950's and held that "statutory interpretation must be unrestrained in divining, and giving full measure to, the rational collective decision made by the legislature." (At 350) The second is the "dealist" approach of which Easterbrook is the extreme exponent. The third, represented by Jonathan Macey, recognizes the legislature's market-like behavior but urges that courts

enforce the stated public purpose of legislation regardless of whether it truly represents the intent of Congress. Special interest groups are successful in Congress because there are high informational costs for the public to discover the true character of legislation. Macey would discourage special interest groups £rom hiding such self-serving measures in ostensibly public-regarding laws. Enforcing the public purpose of a statute would make hidden agreements worthless and thus would force

             representatives to expressly state any special agreements. Id at 364.

Since the stated purpose of the statute arguably reflects public sentiment more than the hidden deals that are reflected in vagueness and omissions, the liberal construction of public interest statutes represents a form of poetic, as well as democratic, justice.

 

131. EEOC v. Aramco, at 1235, citing Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428,440 (1989).

 

132. See Greider, supra note 14, at 123:

The general political climate is now infected with a cynical understanding that things need not be real in order to satisfy the public's desires and demands. Instead, both political parties and the webs of client–representative relationships surrounding them have perfected the practice of concocting hollow laws -- promises the government makes to the people which it does not necessarily intend to keep.

The political community as a whole, including the media and even many reformers, has come to accept the legitimacy of this and even celebrates new laws that are really no more than gestures of good intent. .

. The reality, as every insider knows, is that the laws lack the precision and capacity to deliver on the intentions.

133. Turley, supra note 24 at 359, n. 23.

134.Id at 368. n. 174, citing Richard Posner, Legislation and its Interpretation: A

Primer, 68 NEB. L. REv. 431, 438. Posner's list of "public interest" topics includes "The national defense, the criminal justice system, the antitrust laws, some environmental laws, and the courts."

 

135. Turley, supra note 24, at 368 n. 177.

 

136. See Greider, supra note 14, at 380, characterizing the practices of maquiladora

factories as "low wages, neglect of public investment, dangerous working conditions, degradation of the surrounding environment, the use of child labor."

 

137. Turley, supra note 24, at 357, citing Frank Easterbrook, Statute's Domain, 50 V. Cm. L. REv. 533, 547 (1983).

138. fd at 359. See also 358, n. 112.

139. MAN'S SEARCH FOR MEANING: AN INTRODUCTION TO LOGOTHERAPY (1963). 140. fd. at 154.

141. 533 F.2d 996.

 

142. 16 V.S.C>A. sec. 1361 et seq.

143. fd, sec. 1372(a)(1), cited in Mitchell, at 1000. 144. 16 V.S.C.A. sec. 1371, cited in Mitchell, at 1000. 145. Mitchell, at 1000.

146. Mitchell at 997.

147. Mitchell, at 1002.

148. Mitchell, at 1003.

149. See 16 V.S.C. sec. 1361(1) and (2).

150. Foley Bros. v. Filardo, 336 V.S. 281, 285 (1981). 151. Mitchell at 1002, 1004; Foley at 286-288.

152. Foley, at 1002.

153. fd. at 1002.

154. See infra, note 272 and accompanying text.

 

155.42 V.S.C. secs. 4321-4361 (1976).

 

156. See NEPA's Role in Protecting the World Environment, V. PA. L. REv. 353, 354 (1982), citing Hanks & Hanks, An Environmental Bill of Rights: The Citizen Suit and the National Environmental Policy Act of 1969,24 RUTGERS L. REv. 230, 269 (1970).

 

157.42 V.S.C. 4332(2)(C). 158. 4:2 V.S.C. sec. 4342.

159. NEPA's Role in Protecting the World Environment, supra note 156, at 355, citing F. ANDERSoN, NEP A IN THE COURTS 16-17 (1973).

 

160. See NEP A's Role in Protecting the World Environment, supra note 156, at 355, and Mary A. McDougall, Extraterritoriality and the Endangered Species Act of 1973, 80 GEORGETOWNL. J. 435.

 

161. NEPA's Role in Protecting the World Environment, supra note 156, at 363-4.

 

162.Id. at 364.

163.42 U.S.C. sec. 4331(A)(1982). 164. Id, sec. 4331(2)(F).

165. Id., sec. 4321.

166. Id

167.Id. at sec. 4331. See Babcock & Wilcox, 5 NRC 1332 (1977). 168. S. 1278, 102d Cong., 1st Sess.

169. 578 F.2d 389 (D.C. Cir. 1978).

170.Id at 391-2, n. 14.

171. Id. at 390.

172. Sierra Club v. Coleman, 421 F. Supp. 63 (D.C. Dist. 1965). 173. Adams at 391.

 

174Id at 191-2, n. 14.

175.Id. at 392. Note that in Lujan v. National Wildlife Federation, 497 U.S. 871

(1990), the Supreme Court significantly narrowed the grounds for standing in environmental cases, holding that solely as members of the public the plaintiffs were not "adversely affected or aggrieved" by the government's decision to open up certain recreational lands for mining.

 

176. Adams at 393. 177.Id. at 394-396.

178. 5 NRC 1332 (1977). 179.Id at 1334.

180. Id. 1334-1336.

181. Id. at  1337.

182.Id. at 1338. 183.Id at 1340.

184. fd. at 1338, citing NEPA, sec. 102(2)(F).

185. fd. at 1342.

186.44 Fed. Reg. 1957 (1979), reprinted in 42 V.S.C. sec. 4321 (1982).

187. The "exemptions and considerations" of Sec. 2-5 offer a long list of reasons why an agency may avoid or modifY the EIS requirement, except for actions taken in the global commons. See also NEPA~ Role in Protecting the World Environment, supra, note 156, at 365.

 

188.647 F.2d 1345 (D.C. Cir. 1981). 189. fd. at 1348.

190. NRDC, at 1351; Turley, supra, note 14, at 629-30. 191. Turley, supra, note 14, at 630.

192. fd.

193. NRDC at 1351; see also Turley, supra note 14, at 629 n. 215. 194. fd. at 1356.

195. fd. at 1356-7.

196. NRDC at 1357.

197. fd. at 154.

198. fd.

 

199. Turley, supra, note 14, at 632, citing The Over the Top, 5 Fold 838,842 (D. Conn. 1925); Tag v. Rogers, 267 F.2d 664,666 (D.C. Cir. 1959), cert. denied, 362 V.S. 904 (1960); and RESTATEMENT (SECOND) OF CONFLICT OF LAWS sec. 6(1) comment b (1971).

 

200 748 F. Supp. 749 (D. Haw. 1990). 201. fd. at 754.

202. fd.

203. fd.

204. fd. at 761.

205. fd.

206. 772 F. Supp. 1296 (D.C. 1991).

 

 

207. [d. at 1297. 208. [d.

209. [d.

210. [d. at 1299.

211. The questions of extraterritoriality presented by NEP A were also raised in a recent case under the Endangered Species Act of 1973 (ESA), 16 U.S.C. secs.

1531-1544. ESA requires that each federal agency must consult with the Interior Department to ensure that "any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species." [d., sec. 1536(a)(2). As in NEPA, this requirement is an intragovernmental directive and is procedural only, and does not require the agency to refrain from an action evaluated as potentially harmful. As in NEP A, Congress did not specify whether the Act was to apply to foreign as well as domestic projects.

Until 1986, the Interior Department regulations interpreted the consultation requirement to apply to overseas federal projects. 43 Red. Red. 870 (1978). However, in 1986 the Department issued new regulations limiting the . requirement to projects carried out "in the United States or upon the high seas." 50 C.F .R. sec. 402.02 (1990). In justifying this shift, the ESA cited "the apparent domestic orientation of the consultation and exemption processes" and "the potential for interference with the sovereignty of foreign nations." 51 Fed. Reg. 19,929 (codified with some changes in language at 50 C.F.R. sec. 402.01 (1990». .

Defenders of Wildlife sued to compel the Department of the Interior to restore the consultation requirement for foreign projects. The Minnesota District Court at first dismissed the suit for lack of standing; when the Eighth Circuit reversed and remanded, the District Court found for Defenders of Wildlife. Defenders of Wildlife v. Hodel, 707 F. Supp. 1082 (D. Minn. 1989). The Eighth Circuit, in Defenders of Wildlife v. Lujan, affirmed. 911 F.2d 117 (8th Cir. 1990). The court assumed that the question was one of extraterritoriality and applied the "clear expression of congressional intent" standard enunciated in Foley. [d at

124. However, the court found that this standard had been met, based on a) the fact that the ESA imposed the requirement for "any action authorized, funded, or carried out" by a federal agency, without distinguishing between foreign and domestic projects (id at 122, citing 16 U.S.C. sec. 1536(a)(2) (1988); b) the statement in the Act that "the United States has pledged itself as a sovereign state in the international community to conserve to the extent practicable the various species offish or wildlife and plants facing extinction" (Defenders of Wildlife at

122, citing 16 U.S.C. sec. 1531(a)(4) (1988); and c) the ESA's stated goal of furthering the purposes of international treaties and conventions to which the United States is a party. Defenders of Wildlife at 123, citing 16 U.S.C. sec. 1531(b) (1988).

In the view of one commentator, the Eighth Circuit decided Defenders of Wildlife correctly, but for the wrong reasons. McDougall, supra note 160 at 437. While failing to question the assumption that ESA presents an extraterritorial question; the court ignored some evidence in the Act which does not support the extraterritorial mandate -- notably the structuring of the consultation requirement which does not appear to Provide for the participation of a foreign country. [d at439,447. (The Interior Department based its ruling on the amendments to Section 7 of the Act, which when the Act was first passed in 1973 consisted of only two sentences. The 1978 amendments expanded this section to include detailed procedural requirements. These requirements make no provision for projects carried out on foreign territory; in particular, the Endangered Species Committee, made up representatives from the agencies and ftom "each affected State" [16 D.S.C. sec. 1536(e)(3)], does not include the Secretary of State or make provision for the representation of foreign countries.)

The Supreme Court decision, Lujan v. Defenders of Wildlife, 112 S.Ct. 213() (1992), did not address the extraterritoriality issue. Reaching only the question of standing, the Court reversed the Eight Circuit's decision on the ground that the plaintiffs had not shown an "injury in fact" distinguishable ftom that of the public at large. Doubtless, the decision will exacerbate the standing problem which has been the Achilles heel of environmental law; but the question of ESA's extraterritoriality remains unresolved.

212. 775 F. Supp. 668 (S.D. N.Y. 1991).

213. Amlon at 669, 42 D.S.C. secs. 6901 et seq. (1982 & Supp. ill 1985). 214. Amlon, at 669.

215.Id.

216. Id. at 670.

217. Id

218. Amlon at 669, 28 D.S.C. sec. 1350 (1982 & Supp. III 1985). 219. Amlon at 672, 42 U.S. C. sec. 6972(a)(1)(B).

220. Amlon at 672.

 

221. Amlon at 672.

222. Id at 673, n. 4.

223. Id. at 671.

224. Amlon at 675,42 D.S.C. 6972(a)(1).

225. Amlon at 675, n. 9, citing EEOC v. Aramco, 111 S. Ct. at 1234. 226. Amlon, at 676.

227. Cf. Stanley M. Spracker and Ethan S. Naftalin, Applying Procedural

Requirements of u.s. Environmental Laws to Foreign Ventures: A Growing Challenge to

Business, 25 Int'l Law. 1043, where, after reviewing Defenders of Wildlife and Greenpeace, the authors advise companies doing business abroad to "take action now to limit future environmental liabilities by reviewing and modifYing their compliance procedures in light of these emerging extraterritorial standards."

228. As with NEP A, legislation is currently pending in Congress to give RCRA extraterritorial application. First introduced in 1989~ the Waste Export Control Act (H.R. 3734~ 101st Cong.~ 1st Session) was reintroduced in 1991 (H.R. 2358~

102nd Cong.~ 1st Sess.).

229. Amlon at 675~ citing 42 U.S.C sec. 6901(a)(4).

230. Amlon at 675-6~ citing 42 U.S.C. sec. 6901(b)(8).

231. See Christopher B. W alther~ Motivation Cases and W.S. Kirkpatrick & Co. v.

Environmental Tectonics Corp., International~ 80 KENTuCKY L.J. 269 (1992).

 

232.28 U.S.C. sec. 1350 (1982 & Supp. III 1985).

 

233. Amlon~ at 671.

 

234. Id, text and n. 2; United Nations Conference on the Human Environment: Final Documents, I. Declaration of the United Nations Conference on the Human Environmen~ 11 I.L.M. 1416~ 1420 (1972).

235. Amlon at 671~ citing RESTATEMENT (THIRD) OF FOREIGN RELATIONS sec. 602(2) (1987).

236. Amlon at 671.

237. Amlon at 671~ citing Filartiga, 630 F.2d at 888. 238. 707 F.2d 691~ 692 (2d Cir. 1983) (per curiam). 239. Id.

240. Amlon at 671.

 

241. Filartiga, at 878. 242. Zapata, at 692. 243. Filartiga~ at 881.

244. 376 U.S. 398 (1964)

 

245. Filartiga at 881-884. 246. Id.~ at 884.

247. See infra, note 267 and accompanying text.

248 Filartiga, at 885.

249. The court notes that Mostyn was first cited in United States cases as the basis

for state jurisdiction over out-of-state torts (McKenna v. Fisk, 42 U.S. (1 How.) 241 (1842); Dennick v. Railroad Co., 103 U.S. 11 (1880), but that it has also been successfully urged as a ground for recovery in a wrongful death occurring on foreign soil (Slater v. Mexican National Railroad Co., 194 U.S. 120 (1904).

250. Filartiga at 885.

251. 18 U.S. (5 Wheat.) 153. 252. Smith, at 598.

253.ld.

254. Id at 600.

255.Id at 601.

 

256. Id at 162; cf. Filartiga, at 880. 257. 175 U.S. 677 (1900).

258. Id at 677, cited m Filartiga, at 880. 259. Id.

260. See supra, notes 235-6 and accompanying text.

261. The Maria, 165 Eng. Rep. 955, 958 (Adm. 1807), cited in Filartiga, at 886. 262. Tel-Oren, 726 F.2d 774,813.

263. Alexander Murray, Esq., v. Charming Betsy, 2 C. 64, 450, 452 (1800). 264. 5 F.2d 838, 842 (D.C. Conn., 1925).

265. Id. at 843.

266. Id. at 842.

267. See David Caron, The Law of the Environment: A Symbolic Step of Modest Value, 14 YALEJ.INT.L. 538, 530-531.

268. Migratory Bird Treaty, Aug. 16, 1916, United States-Great Britain, 39 Stat.

1702, T.S. No. 628.

 

269. [UNCED materials were scheduled to appear in the August, 1992 issue of I.L.M., publication of which has been delayed till October. I will supply the references then.]

270. See Brennan, supra note 31, at 149 (text and n. 46). 271. Id. at 152-153.

272. Id. at 156-7, n. 84.

273. Filartiga, at 881-882.

274. "'Fast track' means that, when the agreement is completed, Congress will take only a single up-or-down vote on approving the entire package, with no chance to amend or reject particular sections. Naturally, this strengthens the president's bargaining position in the international arena, but it also cuts out the democratic process." Greider, supra note 14, at 390.

 

275 See Magraw, supra note 23.

 

276. Richard Schwartz, Are the OECD and UNCTAD Codes Legally Binding? 11 Int. Law. 529, 536.

 

277. RESTATEMENT (THIRD) OF FOREIGN RELATIONS, Part VI, sec. 601. 278. Id, sec. 601(1)(a).

279. Id., sec. 601(1)(b).

280. Id, sec. 601(2) and (3).

281. See Christopher Stone's classic article, Should Trees Have Standing?, So. CAL. L. REv. 450 (1972).

 

282. Caron, supra note 267, at 530.

 

283. Id.

284. Id at 530-531. 285. Id. at 530-531. 286. Id at 530.

287. Id. at 533. 288. Id at 536.

289. Organization for Economic Cooperation and Development, THE GECD GUIDELINES FOR MULTINATIONAL ENTERPRISES (1986).

290. UNCTC Current Studies, THE NEW CODE ENVIRONMENT 32-46 (1990).

291. Schwartz, supra note 21, at 529-530.

292. OECD GUIDELINES, supra note 289, at 22.

293. Pieter Sanders, Implementing International Codes of Conduct for Multinational

Enterprises. 30 AM. J. COMPo L. 241, 245-6 (1982).

294. Id.

 

295. Introduction, OECD GUIDELINES, supra note 289, at 7.

 

296. Id. at 13.

 

297. Id. at 23 (post 1984 review, par. 24).

298. [d. at 23-4 (post 1984 review, par. 27).

299. See note 41, supra.

300. THE NEW CODE ENVIRONMENT, supra note 290, at 40.

301. Id. at 43.

 

302. THE NEW CODE ENVIRONMENT, supra note , at 2.

 

303. Id. at 2-3.

 

304 Id. at 18.

 

305. Id. at 2. 306. Id. at 20. 307. Id.

308. Id. at 21.

309 Id. at 19.

 

310. This loss of control affects "host" countries as well as home countries: "As 1NCs emphasize non-equity investments and explore flexible arrangements among multiple business partners, a 1NC's long-term stake in any specific host location is thereby reduced. . . Without the anchor of substantial invested equity capital, a 1NC's commitment and sense of responsibility for "good corporate citizenship" in specific locations is

            likely to weaken in a parallel fashion. (Id at 22)

311. Id. at 28. 312. Id. at 28. 313. Id.

314. Id at 211. 315. Id at 4.

316. Tony Carritt, EC Offers Dialogue with Industry on Environment, Reuter LibrarY Report, Mar. 18, 1992.

317. Reynolds, Clouds of Codes: The New International Economic Order Through Codes of Conduct: A Survey, 75 Law Library J. 315 (1982).

318. THE NEW CODES ENVIRONMENT, supra note 290, at 5.

319. See GEORGE RICHTER, THE CONSCIOUSNESS OF EARTH 55,77-79 (1989).

 

320 Readers wishing to pursue this profoundly uncomfortable might begin with Thomas Palmer, The Case for Human Beings, 269 ATLANTIC 83 (Jan. 1992), which argues that the losses to Earth's biological diversity through human-caused extinctions may eventually be compensated for by the complexity ofhnrnan–made systems:

Long ago certain moths learned to communicate over as much as two miles of thick woods by releasing subtle chemicals that prospective mates could detect at levels measured in parts per million; today a currency broker in Tokyo can pick up a phone and hear accurate copies of sounds vocalized a split second earlier by a counterpart on the other side of the world. Which system of signals

                        is more sensitive and flexible? (Id. at 88.)

Though this suggestion is accompanied by conventional praise of human intelligence ("Consciousness. Mind. Insight." [Id at 86]) as a revolutionary development in the history of life itself: its real import is revealed as the author goes on to compare the earth to a fertilized hen's egg in which a network of cells (humanity) has begun to form. "The egg does not know that it is on its way to becoming a chicken. . . And yet the egg couldn't be better equipped to make a chicken out of itself." Our planet, like the egg, is on a "mission" which is similarly unknown to its contents. (Id at 88) Thus technological culture, the ultimate product of mind, ends in a return to nescience, to a kind of mysticism which reveres not a consciousness but a process occurring among inanimate objects (since the human being, in this view, is merely the means by which technology invents itself). In such a view, of course, the notion of responsibility cannot arise.

Contrary to what one might hope, this view is not an isolated one. In a

1991 book significantly entitled In the Absence of the Sacred, Jerry Mander reports on a new generation of scientists, funded by such institutions as Stanford, MIT, Harvard, and Berkeley, who envision nothing more nor less than the replacement of human beings with machines that will evolve by their own logic in a world where nature has given way to an entirely artificial creation. Id at 161-191. And see also the chapter "Corporations as Machines, id at 120-137. Mander's well–documented book brings together cultural, scientific and economic insights in a way which confirms the basic insight of this Note.

321. I Agenda 21 & the UNCED Proceedings xcvii, ed Nicholas A. Robinson (1992) [This Note presently relies on the draft of the "Rio Declaration" which was presented at UNCED. Before publication, the text will be checked against the final version of the document.]

322. International Environmental Reporter, BNA, Inc., Mar. 13, 1991.

323.Id

 

324. Id

 

325. Michael McCoy, PrepCom III: Earth Charter and Agenda 21 Emerge, DEVELOPMENT FORUM (n.d.).

 

326. See supra, note 320 and accompanying text.

 

327 Stockholm Declaration, note 234 supra.

328. See supra, note 267 an4 accompanying text.

329. See Goldfarb, supra note 19, and Greider, supra note 14, at 379,382-3. 330. See supra, notes and accompanying text.

331. This is the impression gained from reading Harvard Research, supra note 30. 332. Greider, supra note, at 402.

333. See supra, notes 322-325 and accompanying text.

 

334. The Paquete Habana, 175 U.S. 677, 700 (1900). 335. Turley, supra note 24, at 364.

336. Weiss, SUpnL note 1, at 109.

337. Id. at 113. 338. Id. at 110. 339. Id. at 125.

340. Weiss, supra note 1, at 157-60 et passim.