Sarei v. Rio Tinto: How an Exhaustion Requirement for the Alien Tort Statute Will Further Exhaust Remedies for Environmental Injuries

Maryland Journal of International Law, Vol. 26, pp. 193-238, 2011

43 Pages Posted: 21 Oct 2012

See all articles by Cheryl Cortemeglia

Cheryl Cortemeglia

University of Maryland Francis King Carey School of Law

Date Written: 2011

Abstract

Many nations often do not effectively enforce or interpret their laws and regulations against their own officers or against transnational corporations because they do not want them to leave with jobs and money. Since 1789, federal courts in the United States have been able to assert subject matter jurisdiction over foreign plaintiffs’ tort suits under the Alien Tort Statute.

Due to foreign relations and other concerns, U.S. courts have limited the reach of the Alien Tort Statute by limiting its subject matter jurisdiction and by relying on a myriad of justiciability doctrines, including the political question doctrine, forum non conveniens, the act of state doctrine, the international comity doctrine, and exhaustion. Requiring foreign plaintiffs to exhaust remedies in a foreign court before suit may be brought in the United States contravenes congressional intent and is not mandated by international law. This requirement will likely thrust some parties into inadequate or corrupt judicial systems. With the gravity of claims brought under the Alien Tort Statute, courts should follow the Supreme Court’s cue in not imposing an exhaustion requirement for suits brought pursuant to 42 U.S.C. § 1983. A possible alternative is the use of abstention to protect parties’ interests and the public interest in fair and just determination.

Keywords: Alien Tort Statute, Sarei v. Rio Tinto, exhaustion, abstention, environmental law

Suggested Citation

Cortemeglia, Cheryl, Sarei v. Rio Tinto: How an Exhaustion Requirement for the Alien Tort Statute Will Further Exhaust Remedies for Environmental Injuries (2011). Maryland Journal of International Law, Vol. 26, pp. 193-238, 2011. Available at SSRN: https://ssrn.com/abstract=2164744

Cheryl Cortemeglia (Contact Author)

University of Maryland Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States

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