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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I.   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. …