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.

• Author: Wilson, Mark W.

1. INTRODUCTION II. THE ALIEN TORT STATUTE: OVERVIEW & CONGRESSIONAL INTENT A. ATS History & Recent Developments 1. Discerning the Intent of the First Congress B. The Meaning of "a Tort" 1. Tort History C. What Violated the "Law of Nations" in 1789? 1. Preconstitutional Evidence 2. Early U.S. Sources III. WHAT VIOLATES THE "LAW OF NATIONS" TODAY? A. Customary International Law 1. Modern Congressional Intent as Evidenced by the TVPA 2. The North Sea Continental Shelf Cases B. Approaches Other Nations are Taking to Police Multinational Corporations IV. WHAT CONSTITUTES THE "LAW OF NATIONS" UNDER THE ATS A. "Law of Nations" and Jus Cogens as Defined by International Law Practice B. U.S. Supreme Court: Jus Cogens, Not Defined, but Ducked V. WHAT IS THE SCOPE OF ENVIRONMENTAL TORTS ACTIONABLE UNDER THE ATS? A. Reasons for Using the A TS to Police Multinational Environmental Torts B. Current Customary International Environmental Law 1. War-Related Environmental Harms 2. Sarei v. Rio Tinto: Environmental Damage under Color of Government Authority C. ATS Jurisdiction for Torts under Human Rights Proxy vs. Standalone Jurisdiction D. Future Environmental Harms Which Could Evolve into Actionable ATS Torts VI. EXHAUSTION A. Squaring the TVPA and A TS Legislative History B. International Exhaustion Requirement of Customary International Law 1. Exhaustion Only Applies to International Tribunals 2. Exhaustion is Procedural Not Substantive C. Plain Language & Case Law History D. A Modified Exhaustion Standard. Preserving Plaintiffs' Cause of Action as Well as Conserving Judicial Resources 1. Do the Plaintiffs Show a Prima Facie Case That They Will Not Achieve Redress in the Country Where the Tort Occurred? 2. Will the Defendant Receive at Least as Fair, If Not a More Fair Trial in the United States? 3. Is There a Local Policy Which Supports Local Exhaustion, While Still Upholding Norms of Customary International Law? 4. Judicial Discretion Can Still be Applied Through Comity, Forum Non Conveniens, and the Political Question Doctrine VII. CONCLUSION I. INTRODUCTION

   Rapid developments in international law regarding human rights and in domestic law regarding protection of the environment have taken place over the last sixty years. While clear international norms for human rights have developed that all persons and nations clearly must follow, customary international standards for protection of the environment have not. Environmental protections in many developing countries remain weak, and citizens of those countries often lack effective enforcement mechanisms, especially civil remedies against private individuals and corporations, despite the severe harms that can and have been inflicted. Some environmental norms regarding chlorofluorocarbon (CFC) and carbon dioxide emissions--under the Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol) (1) and Kyoto Protocol to the United Nations Framework Convention on Climate Change (Kyoto Protocol) (2)--may have already reached the status of customary international law. A little-known U.S. statute may provide an avenue for alien plaintiffs abroad to enforce international environmental norms against U.S. corporations in the federal courts, obtaining relief they are unable to acquire at home.

   The Alien Tort Statute (ATS), (3) a provision of the Federal Judiciary Act of 1789 (Judiciary Act), (4) rested nearly dormant for almost 200 years until it materialized again in a series of modern cases, starting in 1980 with Filartiga v. Pena-Irala. (5) These cases rested on succinct language which grants federal courts jurisdiction "of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States." (6) Most modern cases have involved torts against the person, such as torture; kidnapping, and the like. (7) Few attempts have been made to apply the statute to environmental tort claims to date, and none have been successful. Generally, private actors, unlike states, do not have access to international tribunals for adjudicating violations of international law. (8) Ongoing litigation involving a London-based mining company operating in Papua New Guinea, Sarei v. Rio Tinto, PLC, (9) has had some success in the Ninth Circuit Court of Appeals, although after granting a rehearing en banc in August 2007, (10) the court decided to remand to the District Court to more fully develop the exhaustion issue. (11) The Sarei plaintiffs alleged human rights and environmental violations resulting from a British company dumping mine wastes upstream, destroying fishing and agriculture, and causing severe health problems. (12) Along with the human rights violations, the Ninth Circuit has allowed some of the environmental claims to proceed as customary international law violations under the ATS. (13)

   This Comment will examine some hurdles to applying the Alien Tort Statute, with a specific focus on environmental tort applications. These issues include: 1) determining what constitutes "a tort" under the ATS, utilizing both historical and more recent legislative history, 2) determining what environmental torts rise to the level of actionable "law of nations" violations under customary international law, 3) refuting the proposition that jus cogens violations are required for the ATS to apply against private defendants, 4) applying the history and intent of the ATS, along with the current state of international law, to examine some possible environmental violations that could apply under the ATS currently and in the future, and 5) proposing an exhaustion standard which addresses concerns regarding international comity and overburdening of the federal courts.

   This Comment will argue that modern courts should apply the ATS phrase "law of nations" to include not just universal torts of international law that existed in 1789, but to all torts currently recognized under customary international law as well. While legislative history which illuminates the congressional intent in passing the ATS is, to say the least, extremely sparse, Congress has shown through both the legislative reports and statutory structure of the Torture Victims Protection Act of 1991 (14) that the ATS was meant not merely as a jurisdictional statute, but as a statute that incorporates customary international law in cases brought by alien plaintiffs involving torts recognized under international law. While this Comment concludes that very few environmental ATS torts can currently be successfully litigated, it continues to investigate possible future developments in customary international law that could lead to broader application of the ATS in an environmental context.

2. THE ALIEN TORT STATUTE: OVERVIEW & CONGRESSIONAL INTENT

   This Part examines the limited legislative history of the Alien Tort Statute and briefly discusses the reasoning of several modern era ATS cases. Understanding the legislative history is key to addressing whether the ATS was intended to be substantive or merely jurisdictional in nature, what the statute's term "law of nations" means in a modern international law context, and whether the scope of torts actionable under the ATS might be expanded beyond eighteenth century torts such as piracy to apply to modern environmental torts committed abroad.

   1. ATS History & Recent Developments

      The legislative history of the Alien Tort Statue is extremely limited; it does not appear to have been addressed during congressional deliberations on the Judiciary Act. Judge Friendly called it "a kind of legal Lohengrin; although it has been with us since the first Judiciary Act, no one seems to know whence it came." (15)

      The ATS is codified, with only minor grammatical changes, at 28 U.S.C. [section] 1350: "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." (16) There are a few differences versus the original provisions of the Judiciary Act of 1789: "[T]he district courts shall have ... cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States." (17)

      Except for piracy cases, the ATS rested mostly dormant through the 1970s, (18) but occasionally was invoked in nonpiracy cases. For example, in Adra v. Clift, (19) a child custody case brought by an alien father, the District Court of Maryland found a violation of the law of nations when the mother failed to honor a custody award from the Religious Court of Beirut. (20) Because the defendant mother had concealed the child's identity and nationality, a violation of safe conduct (a "law of nations" tort specifically mentioned by Blackstone (21)), the court found this behavior to be sufficient to give rise to an ATS cause of action. (22) The court cited with approval United States Supreme Court Chief Justice Waite in finding that explicit statutory authority creating a cause of action for violation of the law of nations is not needed beyond the ATS: "Whether the offense as defined is an offense against the law of nations depends on the thing done, not on any declaration to that effect by Congress." (23) The Adra case illustrates the ATS working almost as supplemental or ancillary jurisdiction; the safe conduct tort creates ancillary jurisdiction over the foreign custody award. This issue is discussed further below at Part V.C.

      The case that sparked the explosion in modern ATS litigation was the Second Circuit's decision in Filartiga v. Pena-Irala. (24) This case appears to be the first decision that held that alien plaintiffs could sue not only for torts as they existed in 1789, but also for those torts arising under developing customary international law. The Filartiga decision provoked academic controversy over what some saw as a...