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Touro Law Review

Abstract

The Alien Tort Statute (“ATS”) was drafted as part of the Judiciary Act of 1789. It was intended to provide federal courts with the jurisdiction to hear civil actions brought by foreign plaintiffs for torts committed in violation of the law of nations or other United States treaty. After a two-hundred-year dormancy period, the Statute has since been revived and become a vehicle by which foreign plaintiffs seek redress for environmental and human rights offenses carried out on foreign soil, often at the hands of United States corporations. However, the Supreme Court continues to limit the reach of the Statute, imposing a hurdle of extraterritoriality, which prevents the Court from offering relief when the harms alleged have not touched or concerned U.S. soil. Regardless of whether these harms were orchestrated on U.S. soil and carried out by U.S. corporations, so long as the harms occurred on foreign soil, U.S. law cannot be invoked. This application is antithetical to the statutory intent of the ATS and the modern practice of international law. It has resulted in decisions that favor corporate defendants, allowing them to bypass liability for even the most egregious rights violations. In contrast, the United Kingdom has circumvented this hurdle by focusing not on sufficient proximity, but on general impositions of tort law, particularly in evaluating whether parent corporations breached a duty of care rightfully owed to claimants. This Note analyzes the UK Supreme Court approach as a means of overcoming the extraterritoriality limitation of the ATS. Among other advantages, this approach will fulfill the Statute’s intent, enabling plaintiffs to obtain redress and allowing federal courts the jurisdiction to condemn corporate defendants for atrocities carried out on foreign soil at the expense of foreign nationals and their land.

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