The rule of law and environmental justice in Perú: lessons learned from the Choropampa mercury accident

Summary

This paper examines a complex legal and
social conflict arising from a serious mercury spill
accident in 2000 in Choropampa, Perú that resulted
from the U.S.-based Newmont Mining Corporation"s gold mining
operation in the region. After finding the Peruvian justice
system inadequate for their case, a group of people who suffered
from mercury exposure filed a lawsuit in the United States for
which the outcome is still pending. More than 1,000 people in the
Choropampa area showed symptoms of mercury exposure after the
spill and more than seven years later many still suffer from a
range of ailments including blindness, memory loss, and muscular
pain.1 Newmont disputes whether these
chronic injuries are related to the mercury spill, but has spent
as $14 million USD to clean up the spill site and has compensated
some victims (who are not part of the U.S. lawsuit) with cash
payments of $570 to $6,000 USD per person. The plaintiffs in the
U.S. lawsuit and others consider this compensation to be lacking
in light of the serious and permanent disabilities suffered by
many of the victims.

We will analyze the Choropampa
environmental conflict"s implications for the rule of law
in Perú, particularly focusing on the
weakness of Peruvian legal institutions and the implications of a
group of victims perceiving themselves as being so let down by
their own justice system that they felt compelled to seek justice
outside of the country. In this analysis we will consider the
particular challenges presented by complex environmental
conflicts like the Choropampa case where there is a substantial
economic and social power disparity between the plaintiffs
(mostly poor peasants) and the defendant (the world"s
largest gold mining firm). In addition, this paper
will explore how corporate responsibility and accountability
factor into creating a culture that respects the rule of
law.

Introduction

Foreign Investments in the Extractive
Industries and Implications for Peru"s Legal
System and the Rule of Law.

Perú is commonly described as land
of contradictions, rich in natural resources but also afflicted
by poverty, inequality, and a legal system characterized by
corruption, unpredictable rules, limited access to quality legal
services, and unequal access to information. In recent years,
however, Perú has evolved into a promising country for
foreign investment and has developed its resources to the extent
of becoming the world"s second largest producer of silver, the
fifth largest of gold, and the sixth largest of copper.
Perú has also passed innovative legislation promoting
foreign investment, showing by example that it is possible to
create an open marketplace for foreign investments
in the Americas.2

Such development does not come without
risks. The mercury spill accident in the remote town of
Choropampa involved one of the largest mining companies in the
world3 and left more than 1,000 people injured, sick, or even
permanently disabled. A public health and environmental disaster
like the Choropampa mercury spill presents a challenge to foreign
investors, communities and governments. How can a developing
legal system give victims access to justice and improve
environmental protection, while maintaining incentives for needed
foreign investment? Strong legal institutions are critical for
economic development and sustaining interest among foreign
investors because "[d]iscriminatory or arbitrarily enforced laws
deprive people of their individual property rights, raise
barriers to justice and keep the poor
poor."4

Local and foreign private investments in
the extractive industries become a powerful source of money for
developing countries in South America like
Perú.5 In fact, at least fifty
percent of the Peruvian exports depend on the extractive
industries.6 For years, silver,
copper, gold, oil and recently natural gas have been the
catalysts for development in Perú. However, toxic
pollution, environmental degradation and ecosystem change have
challenged the human communities and ecosystems that
host these resources. Although, Peruvian law formally
addresses environmental conflicts, the regulations are
poorly enforced, and local communities have little meaningful
power to contest the actions of the large mining companies. In
the Choropampa case, victims went so far as to seek justice
outside the country altogether after finding no reason to expect
a fair process or just result in Peruvian courts. The weakness of
Peru"s legal institutions for resolving environmental conflicts
has substantial implications for the rule of law and the
country"s future development. Most definitions of the rule of law
include elements of fairness, predictability, equality,
accessibility, and enforceability.7
The lessons from the Choropampa case show failures of the
rule of law in all of these aspects and demonstrate
the need for Perú to strengthen its institutional
framework, create a more a reliable legal and judicial system,
and engage the legal community in improving the rule of law and
the people"s trust in the legal system.

I

An Environmental
Disaster: The Facts and Background of the Choropampa
Case.

Choropampa is a small town of 3,500
residents in the highlands of the northern Peruvian Andes, near
the biggest gold mine in the Americas, called Yanacocha. The mine
is managed by an American-Peruvian consortium headed by Newmont
Corporation.8 Choropampa is a town
like many old towns in the Andes Mountains in Perú where
most people work in small-scale agriculture and live
amidst poverty and economic disparities. Choropampa is different
than other Andean communities, however, because the
people are well organized and the people are willing to work
together to protect their collective
rights.9

For the last four hundred years, Peru"s
treasure trove of valuable metals like silver, copper, and gold
have been mined by both foreigners and locals. Though it is a
common belief among indigenous people is that Peruvian gold and
silver have only ever been exploited by foreigners—starting
with Spanish conquerors leading to American investors today.
Moreover it is common among teachers in public primary schools
around Perú to teach to their students that
"Perú es un ciego sentado en un banco de oro ("Perú
is a blind guy sitting on a gold bench"). This phrase was coined
by the Italian naturalist Antonio Raymondi, in the middle of the
nineteen century and it implies that Perú could be a
powerful country if it would exploit its own natural
resources.

On June, 2, 2000, a Yanacocha mine
contractor used to transport elemental mercury away from the
Yanacocha mines by truck spilled more than three hundred thirty
pounds of mercury along a twenty five mile stretch of road from
the mine to the Pacific coast.10 Much
of the mercury seeped into the region around Choropampa. Later, "
people thinking the mysterious metallic liquid could
be valuable, gathered mercury using empty soda bottles, brooms,
even their hands. Children played with it and tasted
it<"11 People did not realize that
they had been exposed to a tremendously hazardous
substance.12 Days later, Yanacocha
operators returned to the town to recover some of the spilled
mercury, informing people that Yanacocha mine already prevented
any damage that could happen. 13 Soon
after that, people in Choropampa began complaining about various
health problems like rashes, headaches, and vision loss that they
believe are connected to the mercury spill.
14 After not receiving satisfactory answers
from Yanacocha mine, the community protested. Headed by the
town"s mayor15, the people blocked the road that connects
Cajamarca to Yanacocha in effort to push the company into taking
responsibility for the health damage. They demanded health
treatment for all people in Choropampa who they believed to be
sick from exposure to the spilled mercury. After negotiations
between the mine and the community, some Choropampa residents
signed individual agreements in which the company
compensated to each person between $570 and 6,000
USD.16 Believing these compensation
levels to be too low, some residents refused to sign agreements
and instead sued Newmont in United States Federal District Court
in Denver17 in 2001, where the Newmont Corporation
headquarters is located.18 After six
years, the court discarded a motion to dismiss the case filed by
the Newmont lawyer, impliedly ruling that U.S jurisdiction is
appropriate for discussing Choropampa complaint because Peruvian
judiciary system does not give to plaintiffs a due process of law
was inadequate to give a fair hearing to this
case.19 The case has not proceeded
beyond this point, thus it is yet to be determined by the U.S.
court whether Newmont will be held liable for the damages caused
by the mercury spill accident in June 2000.

II

Rule of Law:
Institutions and Culture.

In developed countries such as the United
States20, environmental protection is addressed by a
comprehensive environmental policy, including a set of regulatory
tools, national technology-based standards, and a
strict liability doctrine for harm caused by
hazardous substanances.21 To
comply with those regulations prudent companies manage their
mining operations to limit emissions and discharges to
permissible levels and comply with laws regulating the
destination of hazardous waste produced by their activities. For
enforcement purposes, generally industries must monitor their
discharges and publicly disclose these
data.22

In this way, industries are accountable to
state and federal agencies as well as to the public at
large. Most major U.S. environmental statutes include
citizen lawsuit enforcement provisions,23
which are used extensively by public interest NGOs to force
industries to comply with regulations and to force the government
to enforce its laws. Through the power of citizen lawsuits,
public disclosure of pollution monitoring data has become an
important source of empowerment for people challenging
environmental damage cause by the extractive
industries.

U.S. technological standards for
environmental controls and the institutional framework developed
to implement federal environmental protection statutes establish
a system that is generally fair and accessible for most actors in
environmental conflicts. In the United States, the cost of
implementing environmental regulations and keeping records
largely is assumed by industry in general. In developing
countries, however, monitoring and keeping records of emissions
is rarely done. A comprehensive regulatory system like the U.S.
model might not be feasible in the short term, but a place to
begin might be to focus monitoring on the most harmful
pollutants from E.I operations close to human communities
and delicate ecosystems. It might also be possible
to extend this targeted approach to identifying and cleaning up
E.I brownfields.24

As all the countries in Latin America (with
the exception of a few Caribbean countries) the Peruvian legal
system is traditionally a civil law system, in which the role of
the judges is limited by the Constitution to being the
interpreters and applicants of the law. Judges principally focus
on resolving individual conflicts in their courts. Judicial
decisions employ a technical and logical labor that is
appreciated by the society at large, but the judges themselves it
do not enjoy the attributes and privileges of their counterparts
in common law countries. In recent years in certain areas of law
Peru"s civil law system has acquired some of the characteristics
of the common law. For example, Perú has moved toward
using the adversarial model in the criminal law, which imposes
new duties on the civil law prosecutor to conduct
criminal investigations. Similarly, in constitutional law,
constitutional judges are now entitled to declare a
law to be inconsistent with the Constitution. The civil law
system derives its power from the consistency and knowledge of
legislators and legal scholars to identify the new trends of the
law that provide a basis to modify the current statutes and
doctrines and enact new ones.

Perú, as a developing and highly
with create economic and social disparities, the law community
reflects the society"s hierarchical structure. In fact, the law
profession is perceived by the population as corrupt
and low quality.25 At the top of that
pyramid are law practitioners working at the most
famous law firms and the law professors of the most prestigious
law schools in Lima. In the middle there are lawyers who work as
highly paid technocrats for the government and law practitioners
at mid-level law firms. And at the bottom of the pyramid there
are many lawyers who practice law in solo law offices, lawyers
who serve as public officers in all the branches of the
government, and the members of the judiciary (in which we include
judges and prosecutors). This description is too generalized to
capture all of the system"s subtleties, but it reflects the
common view that members of the Peruvian law community hold about
their profession and their colleagues. Perúvian
professionals who devote their careers to these
occupations traditionally are not among the most talented
students at the most prestigious law schools in Perú. A
recent survey conducted at the Pontificia Universidad Catolica
del Perú—the most highly regarded and traditional
law school in Perú— showed that those law students
prefer to pursue careers as law practitioners at a large law
firms and law professors over careers as judges or
prosecutors.26 The results of this
survey underscore perceptions about the Peruvian law community"s
hierarchy by demonstrating that, despite the social importance of
judges and prosecutors, most promising law students generally
would not choose those jobs. The quality of legal education in
Perú varies widely. Unlike at the best law schools, the
majority of private and public law school curriculums feature
lecture-style courses that provide information about statutes and
doctrines with very little time devoted to
developing logical and legal reasoning
abilities.27 Students from these
schools are usually poorly prepared to compete for
the best paid and well recognized positions at large law firms.
In fact, according to data collected by the National Council of
Education, most of the average students at these less rigorous
schools around Perú go on to be interns in the judiciary
and plan judicial careers.28

A judicial career in Perú commonly
begins with an internship, a voluntary position in which a law
student assists a judge while still in school. After finishing a
bachelor"s degree and passing the professional exam at the law
school, young lawyers can apply for temporary positions in the
judiciary system as assistants. After seven years of practice,
the lawyer can apply to the National Magistrature Council for a
position as a judge. Applicants are tested competitively on legal
and logical abilities to determine their fitness to be judges.
The salary of a Judge of Pace (the first step in the judicial
career) is not uncompetitive—approximately $2,000
USD per month—compared to the average salary of law
practitioners in a small law firms of about the same
experience—$700-1,000 USD per month. However, despite the
reasonable pay, the most talented future lawyers are reluctant to
pursue a judicial career because of low regard for the
independence and talent of Peru"s judges and prosecutors. The
relatively low esteem in which judges in Perú are held
suggests that the legal culture has not fully developed
the customs, habits, and institutional expectations
that characterize and independent
judiciary.29

This situation becomes quite complex in the
rural provinces of Perú where the quality of the law
schools decreases considerably. In these places, the lack of
access to law libraries and legal research resources reduces the
amount of litigation and produces repetitive and mechanical
application of statutes by lawyers and judges. As a result, very
little new law is created in the provinces. In Perú, more
than eighty percent of industry and economic activity is
concentrated in Lima—Peru"s capital and largest
population center. Similarly, most creative law practice and
legal developments are concentrated in Lima. Concentrating
creative law practice with wealth and power means that the law
develops to serve already economically influential groups rather
than Peru"s rural and poor populations. Law practitioners in Lima
have a highly disproportionate influence on the legal system,
which creates substantial challenges for fairness in Peruvian
courts for system "outsiders," especially in complex litigation
like the Choropampa environmental conflict. In such cases,
plaintiffs and defendants must have competent legal advice to
navigate the litigation process. It is unclear to what extent
outright corruption30 in the courts is a problem in Perú
today, but inequality in access to sound legal information and
representation on their own create a substantial challenge to
justice. This is especially true too often in cases where the
judge and prosecutors are not very knowledgeable about the law
and perhaps not capable of conducting a fair process. Plaintiffs
from rural provinces without access or resources to obtain high
quality counsel have difficulty bringing complex claims
successfully in Peruvian courts when facing wealthy,
sophisticated adversaries.

In Perú, environmental protection in
the extractive industries is addressed in the National
Agreement31 and technically by the General Environmental
Law.32 These policies encourage
companies to internalize environmental costs, promote sustainable
development, and citizen participation in environmental
management. Uniform international standards adopted
by the Peruvian government33 also theoretically limit pollution
by making government agencies responsible for
testing and monitoring pollutants in the environment. Peruvian
environmental regulatory statutes, however, do not impose
stringent effluent limitations, nor do they require monitoring of
air or water pollution. They also do not require mining companies
to disclosure information about emissions, which limits
availability of information that could be used to identify
environmental statutory violations.34
Moreover, Peruvian environmental and health agencies do not
have the ability to collect basic emissions and environmental
quality data about the air, soil and waters of Perú. The
existing regulatory statutes do, however, open avenues to
prescribe specific rules to provide causes of action for citizen
lawsuits and standards for environmental statutory
violations.35 With such
statutory modification, it might then be possible
for communities or NGOs to bring lawsuits in situations
where mining companies" activities have caused harm to
property or health or have damaged local ecosystems. The limited
public pollution information available today, however, creates
few opportunities to bring extractive industry companies to court
or to negotiation tables.

This is not to say that the Peruvian legal
system is not capable of finding a mining company to be liable
for causing harm or damage to private property, public lands or
human health. The legal questions to determine liability hinge on
the grounds of the cause of action and the causation and the
determination of harm/damage. Perú"s General Environmental
Law creates a cause of action against any operator
engaging in environmental risky activities that produce harm or
damage36; in other words any operator in the extractive
industries could be fully liable if causation and damages could
be proved. The problem, however, arises in the process of
determining causation. First, the source of the pollution must be
identified; then harm to property, ecosystems, or human health
must be evaluated. The legal analysis focuses on explaining the
process of pollution as well as how it affected human health,
properties, and the ecosystem. The harm or damage is
the last event in a chain of causation originating with the
source of the pollution. Therefore identifying the composition of
the pollutants released by the mining company is essential in
order to analyze the consequences for human communities and
ecosystems. With no public pollution information available, the
task of establishing causation becomes an enormous scientific and
logistical challenge that few communities would have the
resources to undertake. Substantial medical and scientific
expertise is required to show, for example, that a
person was sufficiently exposed to a pollutant to make him sick
and that the pollutant was in fact the cause of a
real illness. As a result, the lack of publically available
pollution data about the extractive industries is a critical
barrier to both enforcement of environmental regulations and for
communities affected by pollution that might otherwise be able to
seek compensation through the legal system.

Scientific data about pollution made
publicly available could be a key tool for communities to monitor
and prosecute environmental violations incurred by mining
companies. Without access to such information under
Peruvian law, communities might seek to open new avenues of
justice in environmental conflicts in international forums like
the United Nations or the World Bank or via alien torts
litigation in the home country of mining
companies.37 Rule of law encompasses
more than legal institutions; it also requires the content
of laws to be just and to "respect and preserve the
dignity, equality, and human rights of all
persons."38 Environmental justice,
protection of human health, and ecological welfare implicate
internationally recognized human rights issues such as access to
justice and rights to life and health.39
In this view, Perú cannot achieve a robust rule of
law culture without strengthening environmental protection and
reforming its system of environmental justice.

III

The Conventional
Remedies, Domestic and International Jurisdiction, and the
Failure of the System.

In the United States, there are four
possible methods for foreign plaintiffs to seek redress in U.S.
courts for corporate environmental abuses abroad: 1) the Alien
Tort Claims Act, 2) applying U.S. environmental laws
extraterritorially, using environmental treaties to
provide causes of action, and applying foreign
environmental law.40 None of these
options, however, are "meaningful solutions to the problem of
lack of corporate environmental accountability in U.S. courts"
for environmental abuses abroad.41
Nor would any of these methods address the lack of
corporate accountability for environmental harm in Perú.
However, when domestic courts fail to provide
adequate remedies, foreign and international forums provide
alternative avenues for environmental plaintiffs to
seek compensation for their damages.

For several years, many indigenous
communities around the world failed in their attempts to seek
justice in U.S. Courts under the doctrine of "forum non
conveniens,"42 Courts in the
United States dismiss cases under this doctrine when there
is an adequate alternative forum—that is an
independent, functioning judicial system—and if another
location better serves the public and private interests
involved.43 Even if the plaintiffs
succeeded in obtaining reparations from Newmont in U.S. court,
the lawsuit would not solve the conflict among the government,
the community and the company in Peru. There are several
questions around Choropampa case that need to be answered in
order to improve the rule of law and future relationships
among the community, government, and mining company:
1) whether the Yanacocha mine is legally responsible for
contractor activities that caused damages to people in Choropampa
community; 2) whether the mercury spill in
Choropampa caused long term health problems for
Choropampa citizens; 3) whether, in the event that Newmont
loses the U.S court case, the Yanacocha mine will be responsible
for health damages and increase compensation for people who
previously signed individual agreements with Yanacocha; 4)
whether the people of Choropampa trust the Yanacocha mine to pay
damages won in a decision against Newmont; and 5) whether it is
possible to create a positive partnership between Choropampa
people and Yanacocha Mine following resolution of the U.S.
lawsuit. Only the first three of these questions can be answered
by the U.S court system. Even though U.S courts could order
Newmont to pay millions of dollars to plaintiffs in damages, that
outcome might do very little to resolve the larger justice and
rule of law problems raised by the Choropampa case.

Personal injury law in the United States
works under the assumption that paying damages to
victims dissuades defendants from causing damage again. The
transfer of money from defendants to plaintiffs also
is intended to make the victims whole again. The United States"
system creates a kind of balance between the cost of civil
reparations and the cost of the investment in preventing damages.
The theory is that companies will reduce risks in their
operations if civil penalties or perceived risk of civil
liability exceeds the actual cost of increasing safety measures
or choosing methods that cause less external damage. For
environmental harm, regulation can serve as a way to encourage
companies to prevent causing damage rather than leaving victims
to use litigation to make themselves whole.

In the United States, common law and
regulation build a complex system of national environmental
standards and liability for damage. Two factors stimulate
equilibrium between companies and individuals in this system:
information and advocacy. Parties act in the marketplace looking
to optimize their benefits according to available information for
making the best rational decision under the circumstances.
Advocacy, on the other hand, allows minority economic actors to
persuade decision makers to modify regulation for
restricting activities that potentially could cause
damage to local communities or for establishing duties for
companies to disclose information about mining activities that
potentially create risks to public health and the
environment.44 Theoretically, a legal
system containing all of these elements could work
fairly for local or foreign companies as well as local
communities. An effective legal system creates equal
opportunities for all parties to seek justice, provides equal
protection to interests regardless of their
socioeconomic status, and gives all parties reason to trust that
resolutions to conflict will be fair.

The legal system in Perú is quite
different and it is less clear that it has the ability to fairly
balance the interests of parties of such unequal power as mining
companies and local, indigenous communities. Local advocates
generally do not trust the judiciary branch to be a fair
arbitrator of conflicts between such disparate parties. Also,
regulation is controlled exclusively by national government which
usually represents the interests of banking, manufacturing and
mining groups of power to the exclusion of poor communities. In
this way, institutional factors restrict community access to
information and the ability of communities to advocate for their
own interests. For example, in the Choropampa case the community
not only did not have access to health protection guidelines
about how to deal with a mercury spill, but also lacked access to
data about pollution produced by mining activities and the
resources to collect such data on their
own.45 Advocacy, however, is growing
as tool in Perú to support political and social claims of
poor communities. International Non-Governmental Organizations,
like Oxfam America, Radda Barnner, Human Watch, and Amnesty
International are actively working with communities to protect
human rights, citizen participation and the
environment.

A win in the Choropampa lawsuit in U.S.
court might increase expectations in Peruvian communities about
the benefits of filing lawsuits in the United States, but it
would not change the imbalance of power in Peru"s
legal system. Leaving the country to find justice does little
or nothing to strengthen legal institutions and the
rule of law in Perú. The Peruvian court system would
remain inaccessible and inequitable for communities like
Choropampa A favorable judicial decision in the United States for
the Choropampa community without a legal, economic, and social
framework for future cases does not serve the system
overall.

IV

Alternative
Approaches to Support the Rule of Law: Corporate Social
Responsibility and Community Empowerment.

There is global concern about protection of
the environment and promoting human rights, which creates new
challenges for the foreign investors, NGOs, and local communities
seeking their place in a globalized economy. The extractive
industries, with encouragement by international institutions like
the World Bank46, now sometimes disclose valuable information
about the environmental impacts of mining on ecosystems and
communities. International corporations facing these concerns in
public and among their stockholders also have implemented new
accountability initiatives. Newmont Mining, for example, now
voluntarily participates in several international initiatives
that promote sustainability, human rights,
anti-corruption measures, and public
health.47 These kinds of initiatives
focus on corporate social responsibility and
sustainable development as a way to balance the exploitative
image of the extractive industries. Companies like Newmont48 use
these programs as evidence of their commitment to sustainability
and human rights and support claims that they do not take
advantage or weak environmental and safety regulations in
developing countries.49 In fact,
Newmont explicitly mentions lingering community distrust related
to the Choropampa mercury spill as evidence of the need for
on-going community relations improvements at the Yanacocha
mine.50

These international efforts to promote
transparency and sustainability in the extractive industries and
companies" public commitments to them change the position of
local communities. Under these frameworks, communities have
expanded options to advocate for their rights and to protect
themselves from exploitation. International environmental and
human rights NGOs have positioned themselves as watchdogs
monitoring the impact of industry activities on the ecosystems
and human health. These groups also have actively worked with
local community leaders to develop stronger voices to challenge
damaging practices by mining companies as in Choropampa or
negotiate mutually beneficial solutions to conflicts
over mining activities.51

Conclusions

Lessons Learned from the the Choropampa
Case.

1. To restore harmony in the legal system
in way that is inclusive of all actors it is necessary to promote
opportunities that provide incentives for communities to trust in
the system. They have to believe that it is possible to win. No
particular outcome should be inevitable.

2. Environmental conflicts raise issues and
questions that should be addressed based on the best technical
and scientific information available. Therefore, a conflict
management approach should be built that promotes
production and disclosure of quality environmental data and
reduces information gaps among different actors. Access to the
best scientific information to communities does not guarantee by
itself a community"s empowerment process in the dynamics of the
social and environmental conflicts. There are several other
influential factors (economic, legal, cultural, institutional,
geographic and educational) that define relationships among the
government, extractive industries, and communities.

3.To be engaged in a legal conflict or
litigation, all actors need equal access to information and
technical advice. Inequality in legal advice and resources
creates an imbalance that impedes finding justice
and pushes parties to seek justice elsewhere, as demonstrated by
the Choropampa case. Even obtaining a U.S. court
order to repair damage would not help to solve the ultimate
problem of weak legal institutions in Perú. It might even
have the perverse effect of causing local communities to give up
on the Peruvian legal system, which would further
weaken rule of law in Perú.

4. Foreign companies investing in
developing countries with minimal environmental and health
protections, low ability to enforce regulations, and weak legal
institutions have a responsibility not only to avoid exploiting
these frailties, but to take affirmative action to promote
sustainability and protect human rights in their
operations.

5. As powerful economic actors,
international mining companies should consider how a legal system
where the rights of all stakeholders are protected could be a
guarantee for long term sustainability of their businesses.
Business relies on predictable, equitable laws, and a functioning
legal system. For a legal system to be sustainable long term, it
must have support and trust from the people, including in this
case the local communities that host mining operations.
Communities are more likely to be amenable to work with mining
companies if they believe that their rights will be protected
without having to go to extraordinary measures like seeking
justice outside the country.

NOTES:

1 Peter Hecht, Chronicle Foreign Service,
"Andean villagers seek American justice: Mercury
contamination near Peru mine leads to legal showdown in
Denver court," March 14, 2005.

2 See World Economic Outlook: Globalization
and Inequality, International Monetary Fund, October 2007,
http://imf.org/external/pubs/ft/weo/2007/02/pdf/c2.pdf at
88. In 1991 the Executive enacted a set of Laws –
Decreto Legislativos 662 "Regimen de Estabilidad
Jurídica a la Inversión Extranjera (September, 9,
1991), 674 "Ley de Promoción de la
Inversión Privada de las Empresas del Estado (September,
27, 1991), 757 "Ley de Marco para el crecimiento de
la Inversión Privada (November, 13, 1991) which fully
reform the legal framework opening the Peruvian market to direct
foreign investments particularly in Extractive Industries such as
mining, oil and gas (Decreto Legislativo 708. ). For instance the
production of gold has been evolving in 1991-2006 from 22,6
metric tons per year to 202,8 metric tons. (source:
http://www.inei.gob.pe/perucifrasHTM/inf-eco/pro026.htm).

3 Newmont, based in Denver, Colorado, is
one of the world"s leading gold mining companies and the
large gold mining company operating in South America. See
http://www.newmont.com and
http://www.newmont.com/en/operations/sthamerica/index.asp.

4 Maria Dakolias, World Bank, "The Role of
the Judiciary for Economic and Social Development,"
November 14, 2003, Speech to the EU Judiciaries
Representatives in The Hague, The Netherlands.

5 See World Economic Outlook: Globalization
and Inequality, International Monetary Fund, October 2007,
http://imf.org/external/pubs/ft/weo/2007/02/pdf/c2.pdf at
86.

6 For 2006, the Mining sector exported more
than $14,464.8 million USD from total exports of $ 23,430
million USD—more than 50% of the Peru"s exports.
Ministry of International Commerce and Tourism,
http://www.mincetur.gob.pe/default.asp?pag=COMERCIO/cuerpo3.htm&lat=COMERCIO/lateraL.asp?pa
g=comercio&num=3.

7 See, e.g., American Bar Association World
Justice Project, Working Definition, Rule of Law (August,
2007 draft).; Justice Anthony M. Kennedy, "The Rule of
Law," Remarks to the American Bar Association,
August 5, 2006, Honolulu, Hawaii.

8 Now & Beyond 2004: Minera Yanachocha,
South America,
http://www.newmont.com/en/pdf/nowandbeyond/NB2004-Yanacocha.pdf
at 1.

9 The community-organization protests and
drama surrounding the mercury spill, the aftermath, and
the on-going legal battles was chronicled in a
documentary film by Ernesto Cabellos and Stephanie Boyd
called "Choropampa: The Price of Gold" (2002). See
http://www.frif.com/new2003/cho.html.

10 Peter Hecht, Chronicle Foreign Service,
"Andean villagers seek American justice: Mercury
contamination near Peru mine leads to legal showdown in
Denver court," March 14, 2005.

11 Missy Ryan, Reuters News Service, In
Feature –Plight of Peru town dim after mine"s mercury
spill. July, 3, 2002. See also Peter Hecht,
Chronicle Foreign Service, "Andean villagers seek American
justice: Mercury contamination near Peru mine leads
to legal showdown in Denver court," March 14, 2005.

12 Symptoms of exposure to elemental
mercury "include these: tremors; emotional changes (e.g.,
mood swings, irritability, nervousness, excessive
shyness); insomnia; neuromuscular changes (such as
weakness, muscle atrophy, twitching); headaches;
disturbances in sensations; changes in nerve responses;
performance deficits on tests of cognitive function. At
higher exposures there may be kidney effects,
respiratory failure and death." Mercury Health Effects,
U.S. Environmental Protection Agency,
http://www.epa.gov/mercury/effects.htm.

13 Peter Hecht, Chronicle Foreign Service,
"Andean villagers seek American justice: Mercury
contamination near Peru mine leads to legal showdown in
Denver court," March 14, 2005.

14 Peter Hecht, Chronicle Foreign Service,
"Andean villagers seek American justice: Mercury contamination
near Peru mine leads to legal showdown in Denver court," March
14, 2005.

15 Former Choropampa Mayor Lot Saavedra is
a young, dynamic leader who played a prominent role in
organizing protests and garnering national and
international media attention for the Choropampa case. "The
people are rising up in a call to conscience," he told Peter
Hecht of the Chronicle Foreign Service. "They are discovering the
totality of abuses by companies only seeking to get the gold."
"Andean villagers seek American justice: Mercury contamination
near Peru mine leads to legal showdown in Denver court," March
14, 2005.

16 Missy Ryan, Reuters News Service, who
interviewed to Luis Campos Yanacocha"s environmental
supervisor in 2002.

17 Castillo v. Newmont Mining, CV-4453
(Denver Dist. Ct. filed Aug. 17,2001)

18 Newmont Corporation owns a majority
share of Yanachocha mine. See 2004 & Beyond: Minera
Yanacocha,
http://www.newmont.com/en/pdf/nowandbeyond/NB2004-Yanacocha.pdf
at 1.

19 Plaintiffs" attorneys—the
California-based law firm of Engstrom, Libscomb &
Lack—argued for the inadequacy of Peruvian courts in part
based on allegations of corruption in the courts involvi ng the
Newmont Corporation in another case. See Engstrom, Libscomb &
Lack, "Mine Games, http://www.elllaw.com/mercury.htm.

20 The United States establishes standards
based on a risk assessment approach, where standards may
vary depending on target organisms or pollutants and the
numerous assumptions made in calculating risks. On the other
hand, a number of European countries utilize a precautionary
approach, setting standards based on non-degradation of soils.
Harrison and Oakes (2002)

21 See Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA) 42 U.S.C.
§ 9607 (1980).

22 See e.g. the Clean Water Act, 33 U.S.C.
§ 1342 National Pollution Discharge Elimination
System.

23 See e.g. the Clean Water Act, 33 U.S.C.
§ 1365 Citizen Suits.

24 A brownfield is land contaminated by a
hazardous substance or pollutant that to the extent that
safe use and development of the land might be
limited.

25 Pasara Luis. Los Abogados han sido
"olvidados", cuando se enjuicia a la justicia. Ideele No.
165/ agosto 2004,
http://www.justiciaviva.org.pe/revista/165/olvidados.pdf.

26 Pasara Luis. La Enseñanza del
Derecho en el Peru.

27 Pasara Luis. La Enseñanza del
Derecho en el Peru. Pasara suggested that law students commonly
learn a solo method of legal analysis "literal legal
analysis," which limits student ability to understand
reasoning methods of analysis. Peru also might benefit from
a program like the American Bar Association"s Rule
of Law Initiative"s Legal Education Reform efforts, which focus
on shaping future lawyers to usher in lasting legal
reform and establish a more robust "rule of law culture.
See
http://www.abanet.org/rol/programs/resource_legal_education.html.

28 The National Council of Education has
more than 31 law schools registered in Peru.

29 Justice Stephen Breyer, Supreme Court of
the United States, Remarks on Judicial Independence at the
Georgetown University Law Center, September 28, 2006, 95
Georgetown L. J. 903 (2007).

30 Transparency International dropped
Peru"s Corruption Perceptions Index score from 4.1 (rank of 44)
in 2001 to 3.5 (rank of 72) in 2007. See
http://www.transparency.org/policy_research/surveys_indices/cpi/2007.

31 The National Agreement is an initiative
in which the government, political parties and the civil
society agreed to enact 31 national public policies
to consolidate democracy in Peru. Peruvian State Policy #`9 is
about Sustainable Development and Environmental Management.
Available at
http://www.acuerdonacional.gob.pe/Foros/ForosTematicos/competitividad/textoc19.htm.

32 General Environmental Law enacted on
March, 10, 2005 (Law 28611)

33 Peruvian environmental and health
authorities have adopted international standards issued by the
World Health Organization as well as the United Nations to
restrict pollutants releases on the environment.

34 Compare to U.S. environmental statutes
such as the Clean Water Act, which through the NPDES permit
program requires regular monitoring and disclosure of data by
industries . Reported data are used by the government and
citizens to bring enforcement actions. See Clean Water Act, 33
U.S.C. §§ 1342 and 1365.

35 In Peru, according to the General
Environment Law (Law 28611) section 143 rules that a citizen
suits can be filed under the grounds of public
interests.

36 According to the section 144 of the
General Environmental Law any operator practicing
environmental risk activities is liable for any
activity that causes damages.

37 To date, several environmental cases
have been brought in the U.S. under the Alien Torts Claim
Act, but none have been successful. See Natalie L.
Bridgeman, "Human Rights Litigation Under the ATCA as a
Proxy For Environmental Claims," 6 Yale Human Rights &
Development L. J. 1 (2007) at 1. See also 28 U.S.C.
§ 1350 (1994). "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."

38 Justice Anthony M. Kennedy, "The Rule of
Law," Remarks to the American Bar Association, August 5,
2006, Honolulu, Hawaii.

39 See Natalie L. Bridgeman, "Human Rights
Litigation Under the ATCA as a Proxy For Environmental Claims," 6
Yale Human Rights & Development L. J. 1 (2007) at 40-41
(arguing for recognition of severe environmental degradation as
itself a human rights violation).

40 See Natalie L. Bridgeman, "Human Rights
Litigation Under the ATCA as a Proxy For Environmental
Claims," 6 Yale Human Rights & Development L. J. 1
(2007) at 2.

41 Id. at 2. In Sosa v. Alvarez-Machain,
542 U.S. 692 (2004), the Supreme Court described the Alien Tort
Claims Act as a jurisdictional statute that does not create a
cause of action and found that although customary international
law is a proper basis for causes of action under the statute, the
court found a need for "judicial caution." After Sosa, human
rights cases involving violations of international law norms that
are universal, obligatory, specific or definable can be brought
under Act—such as cases involving severe human rights
violations like torture. See EarthRights International,
Transnational Litigation Manual for Human Rights and
Environmental Cases in United States Courts, Revised Second
Edition, October 2006,
http://www.earthrights.org/files/Reports/lit_manual_2nd_edition_2007.pdf
at 17.