Curing Canaries: Transnational Remedies for Peruvian Communities Impacted by Foreign Extractive Projects

Matthew E. Dwelle*

This Note addresses the human rights, environmental, and social impacts that accompany foreign-backed extractive projects in Peru, and the ability of impacted communities to hold such companies accountable for harms caused. Given persistent roadblocks to local justice, this Note focuses on judicial and non-judicial remedies available in the home states of multinational extractive corporations operating in Peru. It first evaluates the extent of home states’ obligations under international law to regulate their corporations’ extraterritorial activities. It next applies this framework to foreign actors in Peru, particularly the United States and Canada, two of the largest investors in the Peruvian extractive sector. In the case of Canada, this Note considers the novel Canadian Ombudsperson for Responsible Enterprise (CORE), highlighting its institutional shortfalls and failure to remedy harmful impacts felt abroad. It then analyzes the recent Canadian Supreme Court case Nevsun v. Araya (2020), which importantly recognized a Canadian cause of action for violations of customary international law.

Shifting to the United States, this Note next examines the recent U.S. Supreme Court case, Nestlé USA, Inc. v. Doe (2021), demonstrating the tenuous viability of the Alien Tort Statute (ATS) to provide for corporate accountability. Given uncertainty around the ATS as an anchor for judicial relief in U.S. courts, this Note argues that a state statute, the California Transparency in Supply Chains Act (CTSCA), may provide a case study for a more promising mechanism for accountability, if revised and adopted nationwide. By evaluating U.S. and Canadian corporate accountability models, this Note offers a current snapshot of recourses available to foreign victims aggrieved by extractive industries, therein contemplating the interplay of accountability mechanisms across jurisdictions, both in Peru and beyond.

* J.D. Candidate, Columbia Law School, 2022. I would like to thank Professor Lisa Sachs, Director of the Columbia Center on Sustainable Investment, for her incisive suggestions and indispensable support at all stages of the research and writing process. This Note also benefited from exceptional feedback from the following experts: Charis Kamphuis, Associate Professor at the Thompson Rivers University Faculty of Law and Co-Founder of the Justice and Corporate Accountability Project; Penelope Simons, Associate Professor and Vice Dean of Research at the University of Ottawa; Anthony VanDuzer, Professor and Hyman Soloway Chair in Business and Trade Law at the University of Ottawa; Rachel Chambers, Assistant Professor at the University of Connecticut School of Law; and Avery Kelly, Staff Attorney at Corporate Accountability Lab. Finally, I would like to thank my family for always supporting me.