Excerpted Complaint filed April 29, 1996, in US District Court, Eastern District for Louisiana Civil Action 96-1476 Tom Beanal et al v. Freeport McMoran, suit ultimately dismissed

[NB– The Freeport-McMoran Gold mine in Irian Jaya (now Papua) is the largest single foreign investment project in Indonesia, and has on occasion attracted criticism related to mine operations as in the case of alleged environmental violations linked to claims of violations of indigenous rights. The basic argument is that if the environment is degraded, the culture and people living traditionally in that environment go too. Two things to note, first that Freeport has always claimed that it satisfies all applicable Indonesian domestic environmental law regulation, and second to ask yourself whether there is customary law, general principles or whatever source of international law to give technical substance to the claim of environmental violations and/or cultural genocide. Is the Complaint’s underlying claim about what the law is (legally cognizable), or is it just what the parties filing the suit would like the law to be? Otherwise, ask yourself whether the person who drafted the complaint includes the cultural genocide count to oppose damage to the environment, or vice-versa? The Alien Torts Claim Act is a federal statute allowing suit in US federal courts on the basis of a violation of international law. Concerning the ATCA generally, see Alien Torts Claim Act:  United States 1789 (Britannica).

ENVIRONMENTAL VIOLATIONS

24.

The plaintiffs allege that the mining operations conducted by defendant corporations referred to herein as the Grasberg mining operation resulted in the destruction of the indigenous peoples’ natural waterways within the region; the deforestation of rain forest and the contamination of the region’s surface and ground water through ore leachate. Said violations of international environmental law are tantamount to acts of eco-terrorism.

25.

The Grasberg mining operation deposits in the local waterways approximately 120,000 metric tons of tailings which contain trace amounts of metals and are the waste product of the open pit mining operation of defendant corporations at Grasberg.

26.

The environmental ramifications of the tailings released into the waterways of the plaintiff’s natural living area include toxicity, volume and mass which have resulted in the disruption of the nature waterways, the pollution of natural waterways, the overflow and alteration of the natural waterways leading to the deforestation of the region.

27.

The FREEPORT mining concession has discharged tailings resulting in massive deposition of tailings of Ajkwa River and the sheet flow of tailings which has substantially destroyed a significant area of the low land rainforest between the Ajkwa River and the Minajeri River. The destruction of said areas has resulted and caused a major environmental, health and safety hazard within Irian Jaya.

28.

Additional problems resulting from the operation of the FREEPORT mining concession include acid mine drainage from the tailings, the concentration, mobilization and bio availability of non-toxic and toxic materials in the tailings, the degradation of surface and ground water quality, increased sedimentation, sheeting and other adverse affects that have been caused by the higher percentage of coarser grain tailings, and the mismanagement of solid and hazardous waste at the site.

29.

The FREEPORT mining concession additionally has caused the hollowing of several mountains which are beautiful, natural resources of the glacial mountain range in the region, spontaneous re-routing of major rivers, the death of a large track of the sago Forest and the increase in levels of toxic and non-toxic materials and metals within the river systems of the area.

30.

Other major rivers affected by the dumping of the tailings into the rivers of the indigenous peoples’ region are the Aghawagon River and the Otomona River equally affected by the mismanagement of the tailing released by the defendant corporations.

31.

As a result of the lack of a proper tailings management program by defendant corporations, areas as large as 50 square kilometers of fresh water swamp forest have been transformed into a denuded tailings deposit area.

32.

The contamination of the waterways by the enormous tonnage of tailings dumped by the defendant corporations prevents sunlight penetration into the water, prevention of oxygen dilution and is a practice which is unacceptable anywhere on this planet.

33.

The plaintiffs allege that acid mine drainage from the Grasberg ore zone is an equally significant international environmental violation caused by the defendant corporations and is caused by chemical and biological oxidation of sulfides and excavation of sulfide containing waste materials during mining which exposes previously unweathered rock to oxygen thereby greatly accelerating the oxidative process.

34.

One of the by products of sulfide oxidation is sulfuric acid which in turn can dissolve residual metals and other metals such as arsenic in the mine waste to produce an extremely toxic leachate.

35.

Plaintiffs allege that defendant corporations have failed to engage in adequate acid mine drainage management programs and have failed to develop a comprehensive mining and waste handling plan to ensure prevention of acid generation from waste rock tailings, open pits and underground work areas.

36.

The Grasberg mining operation within the FREEPORT concession already exhibits visual evidence of acid mine draining which is the result of sulfide oxidation within its property.

37.

The plaintiffs allege that due to the mismanagement of the defendant corporations that toxic leachates from the open pits of the Grasberg mining operation have been widely disbursed into the round water and surface waterways within the FREEPORT concession.

38.

Defendant corporations mining operations in Irian Jaya violate every acceptable international norm and has and will result in the continued destruction of the beautiful valleys, glacial mountain ranges and the rain forests of the region.

39.

The corporations mining operations disrupted the delicate ecosystem balance between the sea, the beaches, the swamp, the rain forest and the alpine areas within the FREEPORT mining concession.

40.

Plaintiffs specifically allege that the defendant corporations have failed to engage in a zero waste policy, an acceptable enclosed waste management system, have failed to maximize environmental rehabilitation, have failed to engage in an appropriate acid leachate control policy, have failed to adequately monitor the destruction of the natural resources of Irian Jaya and have disregarded and breached its international duty to protect one of the last great natural rain forests and alpine areas in the world.

CULTURAL GENOCIDE

41.

The plaintiffs specifically reallege each and every paragraph of the foregoing Complaint as if repeated herein.

42.

The plaintiffs allege that the human rights violations and the eco-terrorism engaged in by defendant corporations have destroyed the rights and culture of the Amungme and other Indigenous tribal people.

43.

Since defendant corporations have commenced their operations, many of the Amungme people have displaced and relocated to areas in the lowlands away from their cultural heritage of highland living.

44.

Other Indigenous tribal people, including but not limited to Komora Tribe, have met the same fate.

45.

The egregious human rights and environmental violations, which have terrorized the tribal communities of the Amungme and other Indigenous Tribal people, destroyed their natural habitats and caused dislocation of the populations have resulted in the purposeful, deliberate, contrived and planned demise of a culture of indigenous people whose rights were never considered, whose heritage and culture were disregarded and the result of which is ultimately to lead to the cultural demise of an unique pristine heritage which is socially, culturally and anthropologically irreplaceable.

Copyright 2020–21 © David Linnan.

Introduction on Background

1/3 Please read for our first class the following non-legal materials

• Flood Woman vs. Climate Doom (Part 1, courtesy of The Post and Courier)
• Carbonomics:  The Future of Energy in the Age of Climate Change (Goldman Sachs Equity Research 12/11/19, as redacted)

Mahathir bin Mohamad, Greening of the World to a Better Living: Address by the Prime Minister of Malaysia at the Official Opening of the Second Ministerial Conference of Developing Countries on Environment and Development, on 27 April 1992. Kuala Lumpur; Jabatan perkhidmatan Penerangan Malaysia, 1992

Linnan, “A Common View of Development: Richer Versus Better, and Who Decides?” in W El-Ansary & D Linnan, eds, Muslim and Christian Understanding: Theory and Application of “A Common Word,” at 235-57 (Palgrave MacMillan, 2010)

Porter, Gareth and Janet Welsh Brown. Global Environmental Politics. Boulder; Westview Press, 1991. pp 15-33

2/3 Please study the maps and explanations at “Map of the Week: ‘Market Size By Gross Domestic Product, 1995’” (Mappenstance, U Richmond Blog 11/03/14) and biodiversitymapping.org. Then read and consider Climate Change and the 75% problem:  The five areas where we need innovation (Bill Gates Blog 10/17/18) and A warmer world will hurt this group more than any other:  We need to help the world’s poorest people adapt to climate change (Bill Gates Blog 03/16/21).  Meanwhile, you will note that Bill Gates used as his guide worldwide averages, but the share of specific sectors like transportation is significantly greater in the United States (compare Sources of Greenhouse Gas Emissions, EPA 2019).

3/3 Please read the following legal (thought) materials
Sulistiawati & Linnan, “Covid- 19 offers preview of environmental threats” (Straits Times 05/02/20)

• Roston, Murray & Dottle, “Life and Death in Our Hot Future Will Be Shaped By Today’s Income Inequality” (Bloomberg, 08/03/20)
• Bressler, The mortality cost of carbon (nature communications 07/29/21)
• Can you beat my score on this climate change quiz? (Bill Gates Blog 10/17/18)

Copyright 2020–21 © David Linnan.

Introduction on Background

Concerning the readings, Dr. Mahathir as Malaysian prime minister was one of the Global South’s leading politicians and spokesmen for a generation. (He retired in the early 2000s, but then returned for a leadership cameo in the midst of Malaysia’s still on-going 1MB scandal, which you may read more about in the US financial pages recently in conjunction with Goldman Sachs’ apparent settlement of the related civil litigation for U$3+ billion.)

1/4 Which is the best way to approach climate change or biodiversity issues and why, Flood Woman’s moralism, Goldman Sachs Carbonomics’ economic analysis of coming changes, or Dr. Mahatir’s political analysis of the split between interests of the developed and developing world?

Ask yourself how Dr. Mahathir’s view of international environmental law matters expressed just prior to the 1992 UN Rio Conference on Environment and Development (informally known as the Earth Summit, which yielded the Greenhouse Gas Convention, the Biodiversity Convention and the Rio Declaration) compares to the contemporaneous views of states or environmental NGOs from industrialized countries (NGOs means non-governmental organizations, for example Greenpeace)? What do you think changed, if anything, in the late 1980s to early 1990s?

Does the average US or European environmental activist then or now see things the same way as Dr. Mahathir, and is Dr. Mahathir right in portraying environmentalists in the developed world as shills for “Global North” timber companies (a conspiracy view)?

When you read the Linnan piece written for a Christian-Muslim interreligious book as a presentation of differing perspectives on “development,” note the general focus on economics, but also the bridge to environmental considerations that changed as documented in the World Bank reports between the early 1990s (environmental concerns are about exhaustion of resources, impoverishing developing countries’ future) and the early 2000s (environmental concerns are about “sustainability”). How do the concerns and timeline on the development side fit either Dr. Mahatir’s views, or those of environmental activists then or now in the developed world?

You need to understand that ideas about distributional justice may drive the climate change narrative on the developing world side, since in practical terms it queered the Kyoto Protocol (an amendment in effect to the Greenhouse Gas Convention to allocate “carbon emission rights” among countries), and arguably thereafter US participation under the Paris Agreement. The modern terminology for “distributional justice” concerns in the environmental sphere would be “environmental justice,” which currently is touched on in the cross-over between BLM activists and the discussion of “green” programs generally, mostly on the progressive political side (e.g., why Columbia will never site a municipal incinerator in the Shandon neighborhood, as opposed to Northeast Richland County). As a general matter, how should/can we address distributional claims in either the domestic or international environment and climate setting? Are they the same or different in nature?

2/4 How do you interpret the Porter & Brown global environmental politics piece’s emphasis on NGO involvement in international environmental law, the role of differing state groups (north-south divide, etc.), plus the underlying point in Dr. Mahathir’s speech that the Global South as relatively poor wishes to become rich through economic development so that it perceives attempts to limit economic growth as attempts to keep them “poor & barefoot”? From the Global South perspective, they are not asking for a hand-out. Instead, they are being constrained from using their own resources in the same fashion as the developed world did 50-100-150 years ago, in the course of becoming wealthy and sophisticated industrialized countries. Is that the way Bill Gates sees matters?

3/4 Look to the 1995 world map by GDP. Does that map look the same or different now 25 years later? Why, and if it has changed, how would it look now? Understand that GDP is traditionally a rough proxy for energy use/carbon generation in industrialization, which moves the discussion smoothly towards climate change. This is a more graphic way of looking at how the pie was divided in 1995, which is not too long after Dr. Mahatir speaks in 1992, and not too long before the Bush Administration declined to ratify the Kyoto Protocol in the early 2000s. How can you deal with the idea that developing countries see their future in increasing economic growth, while environmental law is typically perceived as slowing or impeding growth (the jobs for pollution equation traditionally)? What do the biodiversity maps tell you about the geographic concentrations of biodiversity globally, and what is the connection to climate change as such?  Is Bill Gates more concerned about climate change or biodiversity, and why?

Looking back to the Porter & Brown piece, if global environmental politics are so complicated, what do you think the law will look like, and how will it be made? In fact, our international environmental law course will largely be about how the law is to be made (largely by treaty) because there are relatively few areas of environmental concern where the law currently exists in a well-developed state and is generally accepted as working (e.g., the Basel Convention on Hazardous Waste has been a step forward, but by no means addresses all our issues; meanwhile, traditional ideas of sovereignty render it difficult to address issues via customary law, etc.). How can all the competing interests be balanced, and what approach to law makes the most sense (human rights-based, treaty negotiations stressing state interests, litigation against individual polluters, etc.)?

4/4 Finally, what do you make of the Sulistiawati & Linnan Singapore ST editorial (SE Asia’s NYT equivalent) to the effect that contrary to popular belief, instead of COVID-19 displacing environmental concerns, it should be understood as a dress rehearsal for climate change difficulties? True or false, why or why not? And does it make a difference that the latest economists’ attempts to develop a better cost model for climate change demonstrate increasingly higher but disparate costs (more heat-related deaths in developing countries, as in the Roston, Murray & Dottle article)? What is the connection between Bressler’s piece on the “true” cost of carbon emissions incorporating mortality effects, whether you ask the question about whether Flood Woman, Carbonomics, or Dr. Mahatir’s approach is the best for the issues, or what the revised carbon cost numbers may imply for Goldman Sachs’ economic analysis?  [Red-hots may wish to look at Carbonomics: The green engine of economic recovery (Goldman Sachs Equity Research 06/16/20, as redacted) in working the carbon price incorporating mortality numbers, with a view to the effects of such revised numbers in the assumptions embedded in the Goldman report).

Copyright 2020–21 © David Linnan.

Introduction on Background

1/3 We shall spend our first class talking about what might be termed broader framework and background issues, so that you later have a better understanding of the significance of the more technical portions of international environmental law. We shall also do a run-through of some basic public international law principles and doctrine relevant to international environmental law. There are some distinctive aspects to international environmental law, including the heavy involvement of NGOs, overlaps to both country-level economic development, and between trade law and environmental law as a result, sharp divisions between the developing and developed world (and also within the developed world, since the Europeans are seemingly considerably “greener” than Americans and richer Asians), and a growing sense that climate change as we move from pure mitigation increasingly to an adaptation phase may involve substantial disparate impacts (most developing countries lie close to the equator, hence will suffer increasing heat and food system impacts arguably faster and more), while most industrialized countries lie further off the equator in temperate zones (so may suffer more variable weather, but probably do not face constantly increasing heat conditions like tropical and desert locations– meanwhile, the US itself may encounter special problems because of the Southwestern deserts and local pressure on water resources).

There is a sense that we increasingly need to articulate law in one form or another to address climate issues (since like the pandemic, the shared problems will not wait for us in abeyance). But how can we do that, absent agreement, or more to the point, how do you reach agreement in the first place? And what is the place of incentives like market-based principles or private industry codes articulated in part as safe harbors? We eventually face the question whether it is good enough to change behavior, regardless of whether changes result from “law,” but that is the essential trade off between “soft” and “hard” law. But is that good enough? And how to deal, together or separately, with the concept(s) that we are actually experiencing two separate climate challenges, one as to “climate change” but another under the rubric “biodiversity”?

2/3 This course looks generally at the nature of the international law process in this area (with its limited number of treaty and substantive law principles), economic and other perspectives on natural resource usage, state sovereignty and abiding tensions between industrialized and developing countries concerning pollution problems (beyond prohibitions, to technology transfer and the “who pays” question). Since established law is minimal, this course examines the framework for international environmental law de lege ferenda. We try to understand differing players’ views of the problems, since it still is relatively early in the law-making process. People begin to have a broader understanding of the problems, but for better or worse there is still visible hesitation about how to address them beyond members of the environmental community. Nonetheless, all those projected 2050 climate change developments, etc., should they eventuate, are scheduled to happen during the professional careers of currently enrolled law students. You presumably will be senior businesspeople, lawyers, judges, elected officials, and civil servants in your mid-fifties in 2050, so you should experience in your own professional lifetimes all such choices made. That is the national schedule, but guess what, sea level rise is projected to raise serious issues in Charleston increasingly already 2035-40 under the Fourth National Climate Assessment (increased sunny day and king tide flooding, as well as enhanced surge issues in hurricanes).  So issues in the Lowcountry may become increasingly serious by your late thirties, so you may have to deal with them for over half your professional careers.

3/3 Now please do the Unit 1 readings and prepare the problems and questions section before our online class. The basic pattern is that you should prepare the readings each week. The problems section will contain problems and questions sometimes to be addressed individually, and sometimes to be assigned to groups to be worked on and presented in class. But for this week, you should prepare everything individually.

Copyright 2020–21 © David Linnan.

Participating Universities

University of South Carolina Law School

Teaching Faculty

Prof. David Linnan

Coverage

Environmental concerns transcend national borders, but present distinctly different issues to differing groups of countries in an area where “soft” law predominates. We shall be looking at two things in particular this Fall. First, how things look within the US after the United States apparently has dropped out of the Paris Agreement (and questions about what we do on the Greenhouse Gas Convention)? And second, how things look in the rest of the world, both as a matter of their perceptions and the commercial reality that our private sector-business community (aka clients) do not do business only in the US? The not so hidden issue is that if international environmental law is about global issues, you can run but you cannot hide longer term. And interestingly enough, there are a number of private sector initiatives in the nature of industry safe-harbors that clients are already complying with, meanwhile the thicket of treaty law is slowly but surely thickening. So there are questions of what constitutes “law,” and does it matter if the goal is changing behavior? International environmental law does not work like traditional command and control environmental regulation of the sort you may have been exposed to in domestic environmental law courses.

This course looks generally at the nature of the international law process in this area (with its limited number of treaty and substantive law principles), economic and other perspectives on natural resource usage, state sovereignty and abiding tensions between industrialized and developing countries concerning pollution problems (beyond prohibitions, to technology transfer and the “who pays” question). Since established law is minimal, this course examines the framework for international environmental law de lege ferenda. We try to understand differing players’ views of the problems, because it still is relatively early in the law-making process. People begin to have a broader comprehension of the problems, but for better or worse there is still visible hesitation about how to address them beyond members of the environmental community. Nonetheless, all those unpleasant 2050 climate change projections, etc., should they eventuate, are scheduled to occur during the professional careers of currently enrolled law students.

Meeting Times & Places

The course is scheduled to meet regularly 09:20-11:30 Columbia time Wednesdays in South Carolina. Due to COVID-19 issues, however, we shall meet synchronously online via WebEx. Class sessions should be recorded and available on Panopto, but that is only for review purposes. Office hours will be as follows. On request, we can schedule a virtual meeting at any time (via WhatsApp, Skype, or whatever; my e-mail for scheduling an appointment is davidkeithlinnan@yahoo.com), or we just use the class connection to hang around online for a short period after class finishes. The Law School officially seeks to minimize presence in the Law School Building at 1525 Senate Street, but I shall also set office hours at the Law School Tuesday and Wednesday afternoons (tentatively 14:00–17:00), since the COVID-19 compromise seems to be that we can meet “outside” in the Law School courtyard. But please let me know if you are coming then physically, so we can arrange when to meet and where.

Text and Approach

We shall save you the cost of a commercial law casebook in this course. The order of coverage from our web-based materials follows:

• Unit 1 — Introduction on Background
• Unit 2 — Customary Law as Basis for International Environmental Law
• Unit 3 — Human, Development & Other Rights-based Legal Approaches to International Environmental Law
• Unit 4 — Human Rights Views Differing: ATCA Then, Now Business & Human Rights Approaches Internationally (Customary Law Versus General Principles)
• Unit 5 — Private Sector Voluntary Codes & ESG (Market-Orientation & Litigation Safe Harbors?)
• Unit 6 — Treaty Interpretation and Treaty Process Approaches (Framework Conventions Versus the Package Deal Approach)
• Unit 7 — Issues with Markets, Distributive Justice & Agency Problems in International Environmental Law
• Unit 8 — Trade/Scientific Risk NTBs & Non-State Aspects (GMOs Plus)
• Unit 9 — Trade & Environment (WTO & GATT Article XX(b)&(g) Exceptions
• Unit 10 — Implementation & International Monitoring on the Example of Ozone
• Unit 11 — Climate Change as the Ultimate Test for the Framework Convention
• Unit 12 — Domestic Implications of International Treaty-Making: The Basel Convention & Hazardous Waste
• Unit 13 — 1973 CITES Convention & Approaches to the Marine Environment: New Science, Old Treaties & Regional Governance
• Unit 14 — 1992 Biodiversity Convention, Sustainability & Indigenous Knowledge
• Unit 15 — Enforcement, Natural Resources & Who Decides?

This course is mostly a specialized international environmental law course, but is offered without prerequisites knowing that some students will have prior knowledge and training in public international law, while others may not. We shall try to address this via online resources and office hours, but if all else fails, the public international law nutshell and similar black letter law summaries are helpful.

Dr. Linda Yanti Sulistiawati is a faculty member at the Faculty of Law, Gadjah Mada University, Yogyakarta, Indonesia, visiting this year at the National University of Singapore on a research fellowship. You will encounter her name in a jointly authored opinion piece you read for the first class. Bu Linda will also use our website materials part of the time to teach her own online UGM international environmental law class this Fall 2020. Wearing another hat, she has also participated as a member of Indonesia’s negotiating delegation in UN environmental and climate change conferences. So she will join us online at some point to discuss and explain how those big international climate change conferences look from the inside of a major developing country delegation (and I plan to teach in the other direction in her UGM course presumably in December). It would be nice if we could set up some connection for our class to the UGM international environmental law students in their own WebEx class, but I am not sure how it could be accomplished given the different time zones, etc. Suggestions, because you are going to have to work out the questions professionally in the longer term with the UGM law students, or their developing country colleagues, who will be facing the questions themselves in 2050 at a senior level in their own system?

Assessment

Grading will be based largely on either (i) a 20-page research paper for two credit hours, or (ii) a 24-hour check-out final examination if you take the course for two credit hours. Students may choose either assessment option if they take the course for two credit hours. There is also an option to take the courses for three credit hours, including writing a 30 page paper structured to satisfy the graduation legal writing requirement. Students wishing to write a research paper should talk early and often with the instructor. Satisfaction of the graduation writing requirement means that you will be required to choose a topic in consultation with the instructor, produce an outline, followed by a first draft and then a final version of the paper. Note that you must confer with the instructor at least three times in the process: to choose a topic cooperatively, to review your writing outline together, and then for comments between your first draft and the final paper version. The process may be harder due to COVID-19 pandemic complications, but we shall work it out. We shall also organize a help session with the reference librarians to introduce you to international environmental law and climate change sources, as a way to help you get started.

You will also be required to prepare certain problems and projects for class in groups, where we shall employ a self-grading process within groups. Your grade will also reflect those on the margin (basically, up or down a half letter grade in +/- terms)

Copyright 2020–21 © David Linnan.