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Volume 11, Number 44 Monday Novemebr 17, 1997

Page 13


Last week the National Law Journal published an article by John Klotz, a New York City litigator, titled "Scorched Earth Policy is Intolerable." In the article, Klotz calls for making pollution an international crime, punishable by an international court.

Klotz reports that a United Nations committee working to create an international court recently dropped language that would make corporate wrongdoers as responsible for their international crimes as individuals.

For years, Klotz has been concerned about the failure of the international community to deal forcefully with environmental crimes.

We interviewed Klotz on November 11, 1997.

CCR: How did you become interested in the area of international criminal environmental enforcement?

KLOTZ: Twenty five years ago, I received a masters degree in international law from New York University. As part of my degree from NYU, I wrote an article about Canadian efforts to control pollution in the Arctic Ocean, In that article, I suggested that environmental polluters may be international criminals subject to prosecution as international criminals. It was a rather advanced concept at that time. But I have a feeling that maybe we are coming around to look seriously at it.

CCR: What evidence is there that things are changing?

KLOTZ: For the last five decades, we organized our society around the great Cold War conflict between the United States and the Soviet Union. That conflict has been resolved. As people are looking for what is important in politics and what concerns them, the environment has come to the fore. Environmental concerns are among the top concerns of Americans and people of many other countries around the world.

I just happened to read today a special part of Newsday about environmental pollution in the Soviet Union. Democracies have fared better in controlling the environment than the totalitarian governments, left or right. Where you have democratic input, the people demand a decent environment. This is what we are seeing now, The environment is becoming central to every political campaign in this country.

CCR You wrote an article for the National Law Journal titled "Scorched-Earth Policy Is Intolerable." What is the point of the article?

KLOTZ.' I'm saying that people who pollute and cause pollution to escape national boundaries are international criminals.

CCR: What is an international criminal?

KLOTZ: There are many definitions. But there are certain core values of the international community and someone who violates those core values is a criminal and subject to prosecution. Under the laws of warfare, we have prosecuted many international criminals. That's what happened to the Nazis.

The first international criminals were pirates. Pirates are international criminals. Any nation which captures a pirate can prosecute a pirate whether or not the pirate engaged in an illegal act in the nation's territory. Any nation can enforce the international law against piracy.

In the article. I argue that at this juncture of history, protection of the environment has become a commonly held international value. People who violate it in a criminal way are in fact international criminals.

CCR: Has there ever been a international environmental criminal prosecution?

KLOTZ: Not that I'm aware of.

CCR: Why not?

KLOTZ The international community has yet come forward and face this problem. In 1972, when I wrote the article about Canada in the International Lawyer, I was looking at laws that Canada had enacted to protect the Arctic Ocean. Those laws would allow Canada to enforce standards on ships well beyond the l2-rnile limit, There was a resulting uproar over Canada passing those laws. I suggested that Canada had a right to enact those laws, because people who were endangering international waters were international criminals. Those kinds of extraterritorial extensions are the beginnings of the exercise of international jurisdiction over polluters.

If you recognize environmental devastation as an international crime, which I think it is, then any nation could prosecute such a person. This is a dramatic tool to move the international community.

CCR. When you say the United States has Jurisdiction to prosecute those who started the devastating fires in Indonesia.

KLOTZ.' If we were to be able to find out who was responsible, any nation, if they had the appropriate statute enacted, would have the right to enforce international law against the polluters.

CCR: Can the United States enforce the law today against international polluters not in the jurisdiction of the United States?

KLOTZ: If the conduct rises to a violation of sufficient gravity of a commonly held international value, then the United States has jurisdiction. There are five different sources jurisdiction.

Obviously you have jurisdiction in your own territory, You have jurisdiction over your own citizens both as victims and offenders. You have jurisdiction over conduct outside your borders which has a direct impact on vital national interests. But there is also the jurisdiction of violations of international law.

What I argue is that if we are not there yet, we are very close to the point of saying that people who spread environmental devastation are in fact violating international law and should be subject to liability.

I would like to see nation-states begin to enact laws. Congress theoretically could enact laws stating precisely what constitutes in its mind the international crime of environmental devastation and enforce it. Obviously, this would cause unhappiness to those who believe that corporations can do no wrong.

CCR: Have there ever been criminal prosecutions by one state against individuals who have committed crimes in another state?

KLOTZ: How about Adolph Eichmann? Eichmann was prosecuted by the Israeli government -- which didn't even exist at the time he committed his crimes. He was prosecuted for crimes against the Jewish people. This was an assertion of jurisdiction by Israel which arises from the international law principle. Genocide is an international crime. Any nation that got its hands on Eichmann could prosecute him for war crimes had it chose to do so.

In Nuremberg, we established an international tribunal. That is a different situation. But now there is a move to establish an international criminal court. This would deal primarily with the crimes against humanity and traditional war crimes and genocide. Those talks are ongoing at the United Nations. It is being drafted by the Third Committee of the United Nations.

CCR: You say that in negotiations to create an international criminal court, language that would make corporate wrongdoers as responsible for their international crimes as private individuals has been stricken out of existence.

KLOTZ: At one point, there was draft language that held "juridical persons" responsible for international crimes would be subject to prosecution. That's legalese for corporations and individuals.

Also, I understand that at one point, environmental devastation was included as one of the crimes the court would have jurisdiction over.

These negotiations are behind closed doors. I am informed that because of objections from the United States and other industrial powers, that language had been dropped. Under the new draft, just individuals would be held responsible, not corporations.

If enough people notice that this is going on, there might be objections raised to letting corporations off the hook.

While we are letting corporations off the hook for criminal wrongdoing, we are creating special tribunals -- like the World Trade Organization. These tribunals are dominated by the conglomerate culture, who pass judgment on trade matters, including environmental regulations. They are empowered to award damages against governments whose laws tread on the toes of international polluters.

These tribunals are staffed by the corporations and their culture. The members of the arbitration panels are drawn from the trade culture. I'm not going to be on the panel. You are not going to be on the panel. The people who are going to be panelists are those "experts" who deal with these issues day-in and day-out. They are going to be attuned to the corporate culture.

CCR: Even if the United States chose to pass a law outlawing international environmental crimes, some other country could challenge that law before the WTO as unfair trade practices.

KLOTZ: In Fiddler on the Roof there is a line about a problem so complex it would cross a rabbi's eyes.

The easy answer is yes. If we were to track down international polluters, we could be liable under the WTO to some country for unfair trade practices. That's why these trade agreements are so pernicious.

Let's look at Canada again. The Ethyl Corp. is now suing the government of Canada for $251 million alleging that Canada's new law banning the gasoline additive MMT is a violation of the North American Free Trade Agreement (NAFTA) . In the United States, the Environmental Protection Agency has sought to ban MMT outright. Ethyl's complaint is being tried by a NAFTA trade tribunal.

Also, the Clinton Administration is concluding negotiations on a Multilateral Agreement on Investments (MAI) . In the name of investor protection, MAI would establish a new regime of investor rights, and restrictions and liabilities on nations that seek to regulate environmental degradations 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 profits.

This protects the right of people to invest money in any economy and gives them the right to challenge these laws before one of these trade tribunals. It is a serious problem.

This is one area where one would think that the right-wing would some joint cause with the environmentalists

CCR: Well, Patrick Buchanan argues against that all the time.

KLOTZ: I did represent Buchanan when he was trying to get on the ballot here in New York. Pataki and D'Amato were trying to keep him off the presidential ballot. I got him on every possible place he could get on.

CCR.: How would the MAI work?

KLOTZ: Countries are dealing with Japanese corporations seeking to denude their forests for export to Japan. One of those countries is Chile. These corporations are stripping away Chile's old growth forest. The same thing is happening here in the United States in Alaska, Oregon and Washington.

CCR: But would the government of Chile impose environmental constraints that would drive these investors away?

KLOTZ: There is an environmental movement in Chile. As a matter of fact, one of the leaders, Adriana Hoffman, received an award at the United Nations a few months ago.

CCR: So, if Chile imposed restrictions on logging, an investor in a Japanese conglomerate could sue Chile under MAI and claim that their investment was undermined by the Chilean environmental law?

KLOTZ: Yes. You would sue the Chilean government. In Canada, Ethyl filed a notice of claim against the Canadian government while the legislation was still being debated in parliament. So, you have the potential for blackmail here. Legislators are going to operating under the gun. These companies are going to say "If you pass these laws, your government is going to have to pay us a billion dollars in damages,"

These legislators are going to be operating under trade agreement blackmail

CCR: In reality, international criminal law doesn't kick in until there is an egregious crime. If you were a prosecutor in the United States, what act of pollution would you chose to criminally prosecute?

KLOTZ: I would carefully at the Indonesian situation. There, the conglomerates have gone in and denuded the forests of their hardwood -- sometimes for using as concrete forms for building construction in Japan. After clearing the forests, they are left with the tree stumps. Instead of pulling the stumps with heavy machinery, they just burned them away. In attempting to burn away the stumps, they have created these massive forest fires that have had an incredible impact on the entire Southeast Asian area. In September. the smoke and haze from the fires in Indonesia caused the crash of an airplane into the mountains of Sumatra, killing 234 people. You have increases in asthma. People who are subject to respiratory problems are dying prematurely.

This conduct is against Indonesian law.

CCR: Is Indonesian law enforcement doing anything about it?

KLOTZ: The man who heads most of the local branches of these businesses plays golf with President Suharto. almost every day.

CCR: If you were a prosecutor, you would prosecute those corporations that created those fires?

KLOTZ: If Congress passed some enabling law, yes.

CCR: But not under some broad international law principle, as in the Eichmann prosecution?

KLOTZ As a practical matter, we had international tribunals try most of the war crimes. But the basic power is there.

I don't expect that tomorrow morning, prosecutors are going to go out and try to figure out how to indict international polluters under existing laws. I'm just trying to underscore the gravity of what is happening and perhaps move the jurisprudence forward.

[Contact: John Klotz, 885 Third Avenue, Suite 2900, New York, New York 10022. Phone: (212) 829-5542. Web: http: //www.walrus. com/~jklotz/]

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