Judicial Conceptions of Social Justice Provide Rationale for Casting Aside International Comity to Create a Judge-made Retroactive Boycott

Plaintiffs-respondents, foreigners, filed a suit 400 billion dollar suit alleging that defendants-petitioners, various multinational corporations, abetted the government of South Africa in human rights violations under the Alien Torts Act. Respondents claim that petitioners provided “resources, such as technology, money, and oil, to the South African government,” which it used “to further its policies of oppression and persecution of the African majority.” Effectively respondents and the circuit court below seek to make petitioners liable for the violations of international law perpetuated by the South African government.

The district court held that aiding and abetting claims are not actionable under ATS. Allowing this would be to give judges the power to effectuate an international boycott of any supposed human rights abuse, as doing business with a country that did not align perfectly with a judge’s perception of social justice would subject a company to litigation. This would undermine the sovereignty of other countries, international trade, and the executive branch’s ability to conduct foreign policy.

Issue Areas:

Free Enterprise, Limited Government

Question(s) Presented:

Whether private corporations may be sued under the Alien Tort Statute (ATS), 28 U.S.C. 1350, for aiding and abetting the system of apartheid imposed by the former government of South Africa.


ALF’s Amicus Brief:

In an amicus brief ALF argues that holding international corporations liable for the actions of foreign governments undermines the international relations principle of comity, which requires that countries respect each other’s mutual sovereignty. South Africa has the right to address its apartheid past through its own courts and political system. Any attempt to punish South Africa is a political issue that should be addressed by the elected political branches, Congress or the Executive Branch. This expansion of tort liability to conduct that took place in South Africa would undermine South African attempts to rebuild their country, which is reliant on foreign investment, and be a jurisdictional overreach to adjudicate claims that would properly be brought before a Court in South Africa, or a court of international law. If comity is violated then other countries may reciprocate in holding companies liable for our policies that they disagree with. The strength of the United States may prevent this, however this will cause resentment, as the president of South Africa called this “the worst form of judicial imperialism.”

International relations, economic embargoes, and violation of international law are highly political questions that raise numerous prudential concerns. The Supreme Court should lay out precise rules for comity that prevent judicial imperialists from punishing companies that trade with countries whose domestic policies they disagree with. U.S. courts should hear cases that affect U.S. citizens, rather than those affecting foreigners that are properly held before foreign courts.

Status:

Lacking a quorum, the Supreme Court affirmed the court below.

Date Originally Posted: February 11, 2008

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