Copyright (c) 2006 Fordham University School of Law
Fordham International Law Journal
ARTICLE: EXHAUSTION OF LOCAL REMEDIES IN ALIEN TORT LITIGATION: IMPLICATIONS FOR INTERNATIONAL HUMAN RIGHTS PROTECTION
29 Fordham Int'l L.J. 1245
In Sosa v. Alvarez-Machain, 1 the U.S. Supreme Court, in a very important footnote, 2 noted that in litigation under the Alien Tort Statute ("ATS") of 1789, 3 consideration would certainly be given to the rule of exhaustion of local remedies "in an appropriate case." 4 While it remains unclear what matters truly fall into the category of "appropriate cases," the Sosa opinion settled a brewing controversy by bringing an element of clarity to the issue of exhaustion of local remedies in alien tort litigation. Before Sosa, there was a divergence of opinions on the place of the doctrine in ATS cases, with one school of thought arguing that under the ATS, plaintiffs need to exhaust local remedies 5 and another school positing that in the absence of a clear specification in the statute, the exhaustion requirement could not be read into the ATS. 6 Other scholars essentially skirted the controversy and called for the doctrine's incorporation into ATS litigation. 7
The exhaustion of local remedies rule is a well-known principle of customary international law. 8 In the Interhandel Case, 9 the International Court of Justice ("ICJ"), in giving clear recognition and fresh vent to the rule, clearly stated:
The rule that local remedies must be exhausted before international proceedings may be instituted is a well-established rule of customary international law; the rule has been generally observed in cases in which a State has adopted the cause of its national whose rights are claimed to have been ...
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