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2 Hous. J. Int'l L. 229 (1979-1980)
The Case for Mexican Liability for Transnational Pollution Damage Resulting from the Ixtoc I Oil Spill

handle is hein.journals/hujil2 and id is 237 raw text is: THE CASE FOR MEXICAN LIABILITY FOR TRANSNATIONAL POLLUTION DAMAGE RESULTING FROM THE IXTOC I OILSPILL i.nther Handl* My testimony relates to the international legal consequences of the Bay of Campeche oilspill. The issue of liability and compensation for oil pollution damage within the United States as well as to natural re- sources subject to United States jurisdiction raises a number of interest- ing legal questions.' I will, however, concentrate on one particular issue, namely the international legal aspects proper, ie., those issues which arise if recovery efforts are directed against the state of Mexico on an international plane. My assumption thus is that Mexico-in con- trast to, for example, PEMEX-could not be sued in the courts of the United States because the very cause of action against Mexico would run afoul of the Foreign Sovereign Immunities Act.2 A fundamental point of departure in settling, as between the United States and Mexico, the question of compensation be that through quiet diplomatic negotiations or by an eventual recourse to third party determination of respective rights and duties, is clarification of the basis and scope of Mexican liability under international law. In- cidental to this question is the issue of the applicability of the so-called local remedies rule to claims for compensation for damage due to transnational pollution: could the United States Government espouse the claims of U.S. citizens without the latter having first exhausted * Visiting Associate Professor of Law, University of Texas, Austin. 1. Apart from possible liability by PEMEX, PEMARGO and SEDCO, it is quite conceiva- ble that the United States itself might be found liable for part of the damage on account of a failure to take all cost-effect measures to mitigate the effects of the spill. 2. Foreign Sovereign Immunities Act of 1976, Pub. L. 94-583,90 Stat. 2891 (codified in scattered sections of § 85, 28 U.S.C. (1976)). Claims brought against Mexico on an interna- tional level would have to allege Mexico's failure to discharge its international duties as a territorial sovereign vis-iz-vis the United States. On the other hand, if the claim of liability is based on a construction of strict liability, Mexico's liability commensurate with its licensing of an abnormally dangerous activity, would again involve a sovereign activity rather than a commercial one. In either case, in a suit in a U.S. court, Mexico would be able to plead successfully immunity from jurisdiction pursuant to 28 U.S.C. § 1603-05. No such problem would, by contrast, be encountered by the victim-plaintiffs against PEMEX, which suit, ac- cordin& to § 1695(a)(2), would clearly not qualify for immunity. For a previous denial of immunity to PE MEX see, eg., S.T. Tringali Co. v. The Tug PEMEX XV, 274 F. Supp. 227 (S.D. Tex. 1967); United States v. Tug PEmEx XV, 1 A.M.C. 896 (1960).

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