## Facts

- Southern Peru Copper Corporation (SPCC) (defendant), a U.S. corporation headquartered in Arizona with principal operations in Peru, operated copper mining, refining, and smelting operations in and around Ilo, Peru, beginning around 1960.
- Residents of Ilo, Peru, and representatives of deceased residents (plaintiffs) alleged that SPCC’s operations released large quantities of sulfur dioxide and fine heavy-metal particles into the local air and water.
- Plaintiffs alleged that this pollution caused serious respiratory illness and other health harms, including severe lung disease, and sought damages for personal injury and wrongful death.
- Plaintiffs filed suit in the U.S. District Court for the Southern District of New York under the Alien Tort Claims Act (ATCA), arguing that SPCC’s conduct violated customary international law.
- Plaintiffs framed the asserted customary international law violations as infringements of rights to life, health, and sustainable development.
- SPCC moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) and argued, alternatively, that the case should be dismissed on forum non conveniens grounds in favor of Peru.
- The district court dismissed the complaint, reasoning that plaintiffs had not shown that high levels of intra-national pollution causing harm to life, health, and development violate well-established, universally recognized norms of international law; it also held, in the alternative, that Peru was an adequate forum and that forum non conveniens supported dismissal.
- Plaintiffs appealed to the Second Circuit.

## Issues

1. Whether plaintiffs’ allegations of severe, intra-national environmental pollution in Peru state a tort “committed in violation of the law of nations” (customary international law) actionable under the ATCA.
2. Whether plaintiffs established a sufficiently specific, universally recognized, and obligatory customary international law norm based on asserted rights to life, health, and sustainable development.

## Decision

- The Second Circuit affirmed the dismissal.
- The court held that plaintiffs failed to identify a well-established, universally recognized, and sufficiently definite norm of customary international law that prohibits the alleged intra-national pollution and related health harms.
- Because plaintiffs did not plead a violation of the law of nations, their claims were not actionable under the ATCA and the federal court lacked subject-matter jurisdiction.
- The court declined to reach the district court’s alternative forum non conveniens ruling.

## Legal Principles

- The ATCA provides jurisdiction only for a tort committed in violation of the “law of nations” (customary international law) or a treaty of the United States.
- A norm is actionable under the ATCA only if it is specific, universally accepted, and obligatory; courts require clear definition and broad acceptance comparable to paradigmatic law-of-nations offenses.
- Customary international law is shown through general and consistent state practice followed from a sense of legal duty (opinio juris); aspirational materials, standing alone, do not satisfy this requirement.
- Broad formulations such as a “right to life” or “right to health” do not, without a concrete and widely accepted rule, supply a judicially manageable standard that converts local environmental harm into an ATCA claim.
- A claimed right to “sustainable development,” as presented by plaintiffs, was too indeterminate to function as a binding customary international law rule for ATCA purposes.
- A proposed liability standard based on whether conduct is “shockingly egregious” cannot replace the required showing of a defined and universally recognized customary international law prohibition.

## Conclusion

The Second Circuit held that plaintiffs’ allegations of harmful pollution from SPCC’s mining and smelting operations in Ilo, Peru, did not amount to a violation of a specific and universally recognized norm of customary international law; accordingly, the claims were not actionable under the ATCA, the federal courts lacked subject-matter jurisdiction, and the dismissal was affirmed without reaching forum non conveniens.


Flores v. Southern Peru Copper Corp., 414 F.3d 233 (2003)