Home » Articles » Volume 39 » Issue 2 » Why Private Remedies for Environmental Torts Under the Alien Tort Statute Should Not Be Constrained by the Judicially Created Doctrines of Jus Cogens and Exhaustion

 
 

Why Private Remedies for Environmental Torts Under the Alien Tort Statute Should Not Be Constrained by the Judicially Created Doctrines of Jus Cogens and Exhaustion

 

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Abstract

The spread of multinational corporations with subsidiaries conducting operations in far-flung locales with reduced or nonexistent legal protections has been a continuing global trend. These entities may be headquartered in countries with well-developed legal standards and environmental protections, but many of the jurisdictions where they conduct activities with significant risk of environmental harm tend to have weak environmental standards, and may not have legal infrastructure to support local plaintiffs’ claims within the jurisdiction. However, there may be avenues for these plaintiffs to find relief in federal courts, using an obscure provision of the Federal Judiciary Act of 1789: the Alien Tort Statute (ATS). This “rediscovered” statute has sparked significant levels of tort litigation in federal courts in the last thirty years and, with the recent case Sarei v. Rio Tinto, PLC, is being applied to environmental torts alleged to violate developing customary international law standards. Opening federal courts for plaintiffs to seek relief for torts committed outside the United States seems fraught with peril, and to date courts applying the ATS have applied several prudential judicial doctrines to avoid or limit ATS litigation.

This Comment argues that the fine line between judicial prudence and allowing plaintiffs to proceed within the zone of jurisdiction granted by the Statute can be realized without applying jus cogens and exhaustion, since other doctrines, such as the act of the state, forum non conveniens, and the political question doctrine, can still achieve substantially the same goals.

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