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National Law Journal
November 17, 1997
P. A17

Scorched-Earth Policy Is Intolerable

By John Klotz

LAST MONTH the fires eating away the Amazon rain forest were reported to be the "worst in history." In September, smoke and haze from fires in Indonesia caused the crash of an airplane in the mountains of Sumatra, killing 234 people. In both the Amazon and Indonesia, the fires had been deliberately set by enterprises seeking to clear the forests for economic development.

The Amazon is an old story; Indonesia a new one. For months, Southeast Asia has been choking on smoke from forest fires raging through Sumatra and Borneo. A thick pall blanketed Singapore, Brunei and parts of Malaysia, the Philippines and Thailand.

Some might argue the arson is justified because it is done at the behest of international conglomerates whose activities are a vital part of the economy of the Pacific rim. On the contrary, the acts of the rain forest arsonists and their corporate employers are criminal. In the short term, hundreds or thousands will be killed or disabled by asthma and smog-related illnesses In the long term, the fires will substantially accelerate the process of global warming. The evil they do stretches across national boundaries and eventually will threaten the entire planet.

These polluters are not just criminals; they are international criminals. An international crime has been defined as "any violation of an elemental individual, group, nation, or international value so basic and permanent in its importance, that the necessity of its protection is recognized by most of the recognized actors on the international scene." (Bloom, "Steps to Define Offenses Against the Law of Nations," 18 W. Reserve L. Rev. 1572 [1967)). Certainly, the rain forest arsonists who threaten to render the earth uninhabitable are violating elemental international values. In 1972, the United Nations Conference at Stockholm declared that an "environment of quality" is a fundamental right of humanity.

Punish the Polluters

Like all criminals, international criminals are responsible for their crimes and liable for punishment. That's the first principle of Nuremberg. But before there can be an adjudication of responsibility, there must be a tribunal. Events in Bosnia have led to the establishment of an international war crimes tribunal. In the United Nations, there are ongoing negotiations in the Third Committee for a treaty to establish an international criminal court.

Yet when it comes to prosecuting the international polluter, there is a yawning chasm between rhetoric and action. Responses to the crime of international pollution have ranged from anemic to nonexistent. In the race for a global economy, the conglomerates are demanding - and getting - increased immunity from environmental laws that might inhibit international operations. The same corporations that claim the basic rights of natural individuals are adamantly eschewing the responsibility and accountability that are the concomitant of personal rights and freedoms. In negotiations for an international criminal court, language that would make corporate wrongdoers as responsible for their international crimes as private individuals has been stricken on the insistence of the United States and other industrial powers.

Instead, trade agreements establish tribunals dominated by representatives of the conglomerate culture, who then pass judgment on trade matters including environmental regulations. These tribunals are empowered to award damages against governments whose laws tread on the toes of international polluters

The worst-case scenario has already happened. The Ethyl Corp. is now suing the government of Canada for $251 million, on the ground that Canada's new law banning the toxic gasoline additive MMT is a violation of' the North American Free Trade Agreement. (MMT is not widely used in the United Slates; indeed, the Environmental Protection Agency has sought to ban it outright) Ethyl's complaint will be tried not by a constitutional court, but by a NAFTA treaty tribunal.

Meanwhile, the Clinton administration is rapidly concluding negotiations for a Multilateral Agreement on Investments or MAI, which would open countries to suits before administrative tribunals. In the name of investor protection, MA I would establish a new regime of investors' rights, and restrictions and liabilities on nations that seek to regulate the environmental depredations of corporations. Under MAI. millions of investors would have the right to haul states before international tribunals and to contest any environmental policies that threaten to erode their cherished profits.

Thus, while the rain forests perish to the torches of the profiteer, endangering the long-term survival of civilization itself, the international community responds by insulating these criminals from liability and opening up special tribunals to consider their complaints.

"No more floods," the Lord promised Noah. "I'll use fire the next time." In the choking, smog-ridden atmosphere of Southeast Asia and across the Sumatran mountainside, where 234 bodies lay scattered, the next time is now.

Interview with Corporate Crime Reporter on issue of corporate responsibility

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